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THE ANNOTATED CONSTITUTION

OF THE

AUSTRALIAN COMMONWEALTH.

ANNOTATED CONSTITUTION

OF THE

AUSTRALIAN COMMONWEALTH

(S^t) JOHN QUICK LL.D.

OF THE VICTORIAS BAB, ONE OF THE REPRESENTATIVES
OF VICTORIA IX THE NATIONAL AUSTRALASIAS CONVENTION 1897-8

AND

ROBERT RANDOLPH GARRAN M.A.

OF THK NEW SOUTH WALES BAR, AUTHOR OF "'THE COMING COMMONWEALTH*

SYDNEY MELBOURNE

ANGUS & ROBERTSON MELVILLE & MULLEN

LONDON : THE AUSTRALIAN BOOK COMPANY

38 WEST SMITHFIELD E.C.
1901

SIDNEY

Websdale, Shoosmith & Co., Printers,
117 Clarence Street.

THE PEOPLE OF AUSTRALIA

THIS BOOK IS DEDICATKD
BY THE AITHORS

Digitized by tine Internet Archive

in 2007 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/annotatedconstitOOquicuoft

PEEFACE.

The preliminary part of this work is a historical introduc-
tion and guide to the study of the Constitution of the
Australian Commonwealth. This is followed by analytical,
legal, and political commentaries on the Constitution, for the
use of those who seek a special and comprehensive acquaintance
with its provisions.

Our chief aim has been a practical one. Clear as is the
language of the Constitution, it cannot be fully understood
without the study of a large correlated literature.

The Federation of the Australian colonies has occupied
the best energies of the statesmen and the people of Australia
for many years ; and this Constitution is the outcome of
exhaustive debates, heated controversies, and careful com-
promises. It is an adaptation of the principles of British and
colonial government to the federal system. Its language and
ideas are drawn, partly from the model of all modern govern-
ments, the British Constitution itself ; partly from the colonial
Constitutions based on the British model ; partly from the
Federal Constitution of the United States of America ; and
partly from the semi-federal Constitution of the Dominion of
Canada ; with such modifications as were suggested by the
circumstances and needs of the Australian people.

The Constitution of the Commonwealth, therefore, is not
an isolated document. It has been built on traditional
foundations. Its roots penetrate deep into the past. It
embodies the best achievements of political progress, and
realizes the latest attainable ideals of liberty. It represents
the aspirations of the Australian people in the direction of
nationhood, so far as is consistent and in harmony with the
solidarity of the Empire.

Such an instrument of government must needs be rich in
historical associations, and many of its derivative enactments

PREFACE.

are necessarily intertwined with the course of constitutional
development and interpretation in kindred systems and
communities. There is hardly a phrase in it without a history,
or without analogy with a phrase which in some other
Constitution has been the subject of exhaustive arguments and
judicial decisions. The Commentaries of the great American
jurists, and the numerous judgments on constitutional
questions given by the Supreme Court of the United States
during the last century, are full of profound reasoning which
is applicable to the words of this Constitution. Many
decisions of the Supreme Courts of Canada and the Australian
colonies upon constitutional questions, and reviews of them
by the Privy Council, are of great value in the elucidation of
the Constitution of the Commonwealth. There is thus an
immense store of material for comparative study.

The actual history of the Constitution is traced generally
in Part IV. of the Historical Introduction, and in detail in the
Historical Notes appended to each clause, section, or sub-
section. But its study involves many other aspects. Its
character as a colonial Constitution demands a review of the
history and principles of colonization, which are shortly dealt
with in Parts I. and II. of the Historical Introduction. As
an Australian Constitution, it is intimately associated with
the story of the constitutional development of the Australian
colonies, which is traced in Part III. of the Historical
Introduction. As a Constitution on the British model, it
requires some knowledge of British constitutional law and
history, the outlines of which are sketched in the notes to the
Preamble and elsewhere. And as a Federal Constitution,
light is thrown upon it by the American, Canadian, Swiss,
and German Constitutions. Wherever comparison was
thought useful, the corresponding provisions of those Consti-
tutions have been set out in small type immediately after each
section.

We are fully sensible of the difficulty of attempting to
expound a Constitution before it has been the subject of
practical working or judicial exposition. It is impossible to
foretell where the real difficulties will be found, or how they

PREFACE.

will be met. The experience of other countries is a guide,
but not an infallible guide ; and the development of the
Constitution of the Commonwealth must assuredly follow lines
of its own. We have, however, endeavoured, from the vast
and scattered materials bearing on the subject, to produce a
work which we hope will facilitate the interpretation of, and
foster an affection for, the Constitution. We trust that by the
orderly arrangement of historical matter, by the minute and
impartial analysis of every fundamental word, phrase, and
enactment of the Constitution, and by the provision made for
the comparative study of other Constitutions, with their
wealth of associated precedents, the work may prove of
assistance, not only to students of constitutional history and
political science, but also to those who, in the active fields of
law, politics, or commerce, have a practical interest in the
working of the new federal institutions of Australia.

For valuable assistance to the study and exposition of the
Constitution of the Commonwealth, we desire to express our
acknowledgments and obligations to the following works : —

Sir Thos. Erskine May : ParliameHtary Practice.

Walter Bagebot : The English Constitution.

Dr. E. Heam : The Gotemment of England.

Professor E. Jenks : The Government of Victoria.

Professor A. V. Dice}' : The Law of the Constitution.

Sir Richard ChaflFey Baker, M.L.C. : Manual for the Use of the Convention of

1891 ; and Pamphlets.
Kent's Commentaries on the Constitution oj the United States.
Storey's Commentaries on the Constitution of the United States.
George Bancroft : Formation of the Constitution of the United Stales.
Dr. John W. Burgess : Political Science and Constitutional Law.
A. J. Baker (Iowa) : Annotated Constitution of the United States.
Dr. J. A. Poraeroy : Constitutional Law of the United States.
Dr. H. Von Hoist : Constitutional Lata of the United States.
John Fiske : The Critical Period of American History.
Roger Foster : Commentaries on the Constitution of the United States.
Dr. Thomas M. Cooley : Constitutional Limitations and Constitutional Laic oi

the United States.
E. P. Prentice and J. G. Egan : Commerce Clause of the United States

Constitution.
James Bryce : The American Commonwealth.
Carl E, Boyd : Cases on American Constitutional Law.
Alpheus Tofld : Parliamentary Government in the British Colonies.
Goldwin Smith : Canada and the Canadian Question.
Gerald John Wheeler : Confederation Law of Canada.
A. H. F. Lefro}' : Legi.4ative Power in Canada.

PREFACE.

For information as to the progress of Federation and
constitutional orovernment in South Australia we are indebted

to Sir Richard C. Baker, and for similar materials in the case
of Tasmania to the Hon. Nicholas J. Brown, M.H.A.
Professor Morris, of the University of Melbourne, kindly
revised the sketch of ancient colonies and modern coloniza-
tion down to Magellan's great voyage. We have to thank
Mr. Francis Walsh, Parliamentary Librarian of New South
Wales, Mr. R. Church, Parliamentary Librarian of Victoria,
Mr. G. W. Waddell, Librarian of the Supreme Court of New
South Wales, and Mr. John Schutt, Librarian of the Supreme
Court of Victoria, for courteous facilities afforded and assist-
ance given in referring to original reports and authorities.

J. Q.
R. R. Gr.
7th Dec, 1900.

-^ I

TABLE OF CONTENTS.

PAGE.

PREFACE ^-ii.

TABLE OF IMPERIAL STATUTES CITED xiu.

TABLE OF CASES CITED xix.

HISTORICAL INTRODUCTION.

Part L— AXCIENT COLONIES

(1) Hellenic City SUtes 1

(2) Roman Colonise ... ... ... ... ... ... ... 4

Pakt II. -modern COLONIZATION

(1) In America, Africa and Asia ... ... ... ... ... ... 6

(2) In Australasia ... ... .. ... ... ... ... 23

Part III.— COLONIAL GOVERNMENT IN Ai;STRALlA

(1) New South Wales 35

(2) Victoria ... ... ... ... ... .. ... ... 51

(3) Tasmania ... ... ... ... ... 58

(4) South Australia ... . . ... ... 62

(5) Western Australia ... .. ... ... ... .. 67

(6) Queensland... ... ... ... ... ... 72

(7) New Zealand . . ... ... ... ... ... ... 75

Part IV.— THE FEDERAL MOVEMENT IN AUSTRALIA

(1) The Germ of Federation 79

(2) Earl Grejf^s Schemes 81

(3) The Constitutional Committees of 1853 90

(4) Australian Efforts, 1854-1863 92

(5) The Tariff Question, 1855-1880 100

(6) The Federal Council • 109

(7) The Commonwealth Bill of 1891 115

(8) The Fate of the Commonwealth Bill of 1891 143

(9j The Popular Movement ... ... ... ... ... ... ... ... 150

(10) Adelaide Session of the Convention, 1897 ... -■• .. 165

(11) Consideration by the Legislatures ... ... ... ... 182

(12) The Sydney Session of the Convention, 1897 ... ... ... 187

(13) The Melbourne Session of the Convention, 1 898 .. . ... ... 194

(14) The Referendum of 1898 206

(15) Events in New South Wales 213

TABLE OF CONTENTS.

(16) The Premiers' Conference, 1899

(17) Adoption of the Constitution, 1899

(18) Enactment of the Constitution, 1900

LIST OF MEMBERS OF CONVENTIONS. CONFERENCES, &c.
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT ..

COMMENTARIES ON THE CONSTITUTION

TITLE

PREAMBLE

COVERING CLAUSES

Chapter L-THE PARLIAMENT

Part I. — General

Part II. — The Senate

Part III. — The House of Representatives
Part IV. —Both Houses of The Parliament
Part V.— Powers of The Parliament

Chapter IL— THE EXECUTIVE GOVERNMENT

Chapter IIL— THE JUDICATURE

Chapter IV.— FINANCE AND TRADE ...

Chapter V.— THE STATES ...

Chapter VL— NEW STATES

Chaiter VII.— miscellaneous

CuAiTER VIIL— ALTERATION OF THE CONSTITUTION
ALPHABETICAL SUBJECT INDEX

PAGE.

. 218
. 221

. 228

. 253
. 262

281
282

311

383
384
411
445
483
508
699
719
811
927
967
978
985

997

TABLE OF IMPERIAL STATUTES

CITED LN THIS WORK.

PAGE.

21 Hen. 111. (1236-7) Confirmation of Charters 383

3 Edw. I. (1272) First mention of Parliament 383

15 Eclw. II. (1322) First recognition of Parliament by Crown 302

4 Edw. 111.(1.330)0.14. Yearly Parliament 411

25 Edw. III. (1352) st. 5. c. 13. Coinage 573

36 Edw. III. (1362) c. 10. Yearly Parliament 411

4 Hen. IV. (1402) c. 1. Confirmation of Charters 303

7 Hen. IV. (1405) c. 15. Election of Knights of Shires 307

9 Hen. IV. (1407) Confirmation of Charters : Statute of Gloucester 307

1 Hen. V. (1413) c. 1. Parlianientarj- elections — residence 477

8 Hen. VI. (1429) c. 7. House of Commons (electors) 307

10 Hen. VI. (1432) c. 2. House of Commons (electors) 307

23 Hen. VI. (1444-5) c. 14, House of Commons (electors) 307

32 Hen. VIII. (1540) c. 16. Aliens 600

34 and 35 Hen. VIII. (1542-3) c. 4. Bankruptcy 586

35 Hen. VIII. (1543-4) c. 3. King's style 298

43 Eliz. (1601) c. 2. Poor relief 321

21 Ja. I. (1623) c. 3. Patent 596, 597

3 Cha. I. (1627) c. 1. Petition of Right 316,318

16 Cha. I. (1640) c. 1. Yearly Parliament 411

c. 10. Star Chamber ; Privy Council ... 318, 502, 751

12 Cha. II. (1660) Restoration Parliament 406

16 Cha. II. (1664) c. 1^ Triennial Parliaments ... 411

29 Cha. II. (1677) c. 3^ Statute of Frauds 322,558

31 Cha. II. (1679) c. 2. Habeas Corpus 318, 5<>2

1 Will, and Mary (1688) Convention declared a Parliament... ... ... ... 406

c. 21. Lords Commissioners of Great Seal ... ... 480

Sess. 2. c. 2. Bill of Rights 316,318,323

6 and 7 Will, and Mary (1694) c. 2. Parliament— Triennial Act ... 411, 462

7 and 8 Will III. (1696) c. 3. Treason 3-50

c. 15. Parliament— Demise of Crown ... ... ... 462

c. 22. Plantations— validity of laws ... ... 1, ^^7

c. 25. Infant: Parliament ... 476

12 and 13 WilL HI. (1700) c. 2. Act of Settlement 317, 318, 324, 478, 728, 731, 733

1 Anne (1702) c. 2. Demise of Crown 462

c. 8. Commissioners to negotiate union with Scotland ... 296

6 Anne (1707) c. 11. Union of England and Scotland 298

c. 41. Demise of Crown. Pension Place-holders 462, 493, 494

8 Anne (1709) c. 21. Copyright 593

10 Anne (17U)r,c. 31. House of Commons electors — clergj- ... ... ... 304

1 Geo. I. St. 2 (17U)j|c. 4. Naturalization ... 478

|,|c. 38. Parliament— Septennial Act 462

4 Geo. I. (17liVc. 11. Transportation to American Colonies 29

6 Geo. I. (171B1JC. 5. Dependency of Ireland on Great Britain ... 299

TABLE OF IMPERIAL STATUTES.

4 Geo.
8 Geo.
18 Geo.
1 Geo.
6 Geo.
6 Geo.

11 Geo.

13 Geo.

14 Geo.

II.

II.
III.
III.
III.

III.
III.
III.

18 Geo. III.

22 Geo.

23 Geo.

24 Geo.
27 Geo.

III.

III.
III.
III.

31 Geo.

33 (Jeo.

37 (ieo.

39 and 40 Geo.

54 Geo. Ill,

59 Geo. Ill

1 and 2 Geo. IV

3 Geo.

4 Geo.
9 Geo.

10 Geo.
1 Will

IV.
IV.
IV.

IV.
IV.

c. 21.
c. 13.
c. 18.
c. 23.
c. 12.

1731)
1735)
1745)
1760)
1765)
1766) c. 11.

c. 12.

c. 42.

c. 21.

c. 58.

c. 83.

c. 12.

1770)
1773)
1774)

1778)

1782)

British Subject ...

House of Commons Electors — clergy ,

Commissions and salaries of Judges

Stamp Tax (America) ...

Repeal of Stamp Tax (America)

Declaratory of right to tax the colonies

Grenville Act ; Election Petitions

British Subject ...

Residence in constituency

Canada — Quebec Act

Colonial Charter— Declaration that Great

will not tax th(3 colonies ...
Contractors : House of Commons

45.
c. 53.

c. 75. Patent Offices in Colonies

1783) c. 28. Ireland

1784) c. 56. Transportation ..
1787) c. 2. New South Wales Foundation

c. 13. Consolidated Fund

c. 38. Designing and printing of linens

1791) c. 31. Canada Upper and Lower

1793) c. 13. Act of Parliament — Commencement .

1797) c. 97. Treaty with United States

III. (1800) c. 67. Union of Great Britain and Ireland

1813) c. 15. (Recovery of debts in N.S.W.)

1819) c. 12. " Sturges Bourne's Act "—Poor Rates

c. 114. Duties in New South Wales

(1821) c. 8. Duties in New South Wales

Repeal of Act for securing dependency of Ireland ... 299

730, 733
... 299
29,35
... 35
... 812
593, 598
22, 310, 512
... 331
... 769
... 299
... 348
284
... 36
... 36
... 36

PAGE.

478, 599
... 593
... 304
... 728
... 21
... 22
... 22
... 496
478, 599
... 477
... 511
Britain

318, 348
... 493

1822) c. 96. Duties in New South Wales

1823) c. 96. Justice in New South Wales and Van Diemen's Land 36, 59
1828) c. 61. Public Houses ... 281

c. 8.3. Government of New South Wales and Van Diemen's

Land 37,59,344,366,462,512,808

22. Western Australia - Foundation 33,68,512

1829) c.
1830-1)

Sand 4 Will. IV. (1833)

4. (Demise of Crown)
c. 20. (Lower Canada— validity of laws)
2 and 3 Will. IV. (1832) c. 4.5. Reform Ast -England

Hou-so of Commons (offices)— Speaker
Statute of Limitations

Judicial Committee 330,

Plantations— vali<lity of laws
Bank of England : Bank Note
South Australia— Foundation
Recovery of Debts— Ireland

Oaths

c. 59. International Copyright

c. 60. South Au.stralia

c. 38. Election Petitions .

c. 67. Patents

4 and 5 Will

5 and 6 WiU

IV.
IV.

(1834)
(18,35)

c. 105.
0. 27.
c. 41.
0. 59.
c. 98.
c. 95.
0. 55.
c. 62.
c. 66.
c. 76.
c. 83.

1 and 2 Vic. (1838)

2 and 3 Vic. (1839)

... 462
... 348

298, 307, 308
... 480
... 462

730, 751, 766
... 348
.. 575
63, 352, 374
... 322
... 348
... 593
... 475
... 596
... 593
... 352
... 496
... 597

TABLE OF IMPERIAL STATUTES.

XV.

3 and 4 Vic.

(1840)

c. 9.
c. 35.
c. 62.

c. 105.

4 and 5 -Vic.

(1841)

c. 13.

5 and 6 Vic.

(1842)

c. 45.
0. 61.
c. 76.

c. 100.

6 and 7 Vic.

(1843)

c. 34.
c. 38.
c. 73.
c. 94.

7 and 8 Vic.

(1844)

c, 12,
c. 66.
c. 69.
c. 74.

8 and 9 Vic.

(1845)

c. 20.
c. 109.

9 and 10 Vic.

(1846)

0.77.
c. 93.
c. 103.

10 and 11 Vic.

(1847)

c. 95.

1 1 and 12 Vic.

(1848)

c. 12.
c. 42.

12 and 13 Vic.

(1848-9) c 95.

c. 96.

13 and 14 Vic.

(1850)

c. 21.
c. 59.

14 and 15 Vic.

(1851)

c. 83.
c. 99.
c. 100.

15 and 16 Vic.

(1852)

c. 12.
c. 72.
c. 83.

16 and 17 Vic.

(1853)

c. 48.

17 and 18 Vic.

(1854)

c. 31.
c. 104.
c. 125.

18 and 19 Vic.

(1855)

c. 54.

c. 55.
c. 56.

c. 84.

20 and 21 Vic.

(1857)

c. 3.

21 and 22 Vic.

(1858)

c. 70.

22 and 23 Vic.

(1859)

c. 12.

23 and 24 Vic.

(1860)

c. 34.
c. 122.

Publication of Parliamentary papers 503

Canada — Union of Upper and Lower 23,512

To Separate Islands (New Zealand) from New South

Wales 75, 344, 512

Recovery of Debts — Ireland ... ... ... ... 322

Loan to South Australia... ... ... ... ... 352

South Australia : Crown Colony 64,352

New South Wales : Representative Legislature — Van

Diemen's Land, .38, 52. 53, 59, 60, 72, 74, 344,

375, 385, 512, 688, 689, 690, 691, 692, 694, 976
CopjTight of Designs ... ... ... ... ... 598

Fugitive Offenders 618,619

Judiciail Committee ... ... .. ... ... 330

Solicitors 809

Foreign Jurisdiction ... ... ... ... ... 618

Aliens and Naturalization ... ... 478, 600, 601

Judicial Committee 330, 741, 743

AssenttoBills— N.S.W. and V.D.L 690

Railway Clauses Consolidation 905, 90S, 910

Wagers ... ... ... ... ... ... ... 558

House of Commons (officers) ... 480

(Lord Campbell's Act — Death by Accident) 281

New Zealand Government .. ... ... 76

Treason — Felony ... ... .. ... ... ... 492

Justices of the Peace ... ... . ... •■• 618

Judgments — Ireland ... ... .. ... ... 322

Offences on the high seas ... ... 358

Abbreviation of language in Acts of Parliament ... 475
Australian Colonies Act (N.S. W., S.A , V.D.L., Vic,

W.A.), 40, 52, 53. 56, 60, 61, 64, 65, 68, 72, 74,

88, 90, 104, 344, .352, 385, 512, 690, 888, 976

Judicial Committee

Evidence

Criminal Procedure

New Zealand — Constitution

Patents

Coin, Colonies

Railway and Canal Traffic

Merchant Shipping

Common Law Procedure

330

348

808

59.3, 594

597

896, 906-10, 912
...49,355, 359
781

New South Wales— Constitution, 44, 72, 463, 504,

512, 690, 889, 976
Victoria— Constitution 45, 46, 57, 463, 504, 512, 690, 704
Australia — Crown Lands Sale ... ... ... ■• 61

House of Commons (offices) —Deputy Speaker

Transportation : Cessation

Cop vright of Designs

Evidence ...

Petitions of Right

Homicide: Sea

4S0
61
598
3J8
805
49

xvi. TABLE OP IMPERIAL STATUTES.

24 and 25 Vic.

(1861; c. 44.

c. 134.

25 and 26 Vic.

(1862) c. 63.

c 89.

26 and 27 Vic.

, (1863) c. 24.

27 and 28 Vic.

(1864) c. 24.

28 and 29 Vic.

(1865) c. 14.

c. 63.

c. 64.

29 and 30 Vic.

(1866) c. 19.

c. 74.

30 and 31 Vic.

(1867) c. 3.

c. 45.

c. 102.

c. 124.

31 Vic.

(1868) c. 29.

31 and 32 Vic.

(1868) c. 72.

c. 105.

e. 125.

32 and 33 Vic.

(1869) c. 11.

c. 15.

c. 43.

c. 55.

c. 71.

33 and 34 Vic.

(1870) c. 10.

c. 14.

c. 23.

c. 52,

c. 91.

c. 102.

34 and 35 Vic.

(1871) c. 28.

35 and 36 Vic.

(1872) c. 19.

36 and 37 Vic.

(1873) c. 22.

c. 48.

c. 60.

c. 66.

c. 88.

38 and 39 Vic.

(1873) c. 38.

c. 51.

c. 53.

c. 77.

39 and 40 Vic.

(1876) c. 59.

c. 80.

40 and 41 Vic.

(1877) c. 47.

41 and 42 Vic.

(1878) c. 67.

c. 73.

42 and 43 Vic.

(1879) c. 75.

43 and 44 Vic.

(1880) c. 9.

South Australia and Queensland Boundaries

62, 374, 375, 976
Bankruptcy ... ... ... ... ... . 592

Merchant Shipping ... . ... ... 355,359

Companies 322, 591, 605

Vice-Admiralty Courts . 400,798

Naval Prize 797

Colonial Naval Defence ... ... ... ... 49, 695

Colonial Laws Validity ... 50, 229, 230, 232, 2.35, 236, 241,
245, 296, 318, 347-352, 364, 631, 650, 736

Marriage ... ... ... ... 50

Parliament — Oath ... ... ... ... ... 488

Reservation of Customs Bills ... ... ... ...40,59

British North America Act ... 23, 291, 294, 335, 347,

349, 509, 544, 705, 720, 798, 832 (&c., see Index)

Vice-Admiralty Courts Amendment ... ... 400,798

Demise of Crown — Representation of the People of

England 298,308,462,463

124. (Merchant Shipping) 358

(Medical Practitioners— Colonies) ... ... ... 350

Promissory Oaths... ... ... ... .. . 488

Hudson's Bay Company .. ... ... ... ... 350

Election Petitions ... 496

Merchant Shipping ... ... ... ... 50, 358

House of Commons — Pensions ... ... ... ... 493

Diplomatic Salaries ... ... ... ... ... 493

Municipal Corporation (Elections) 475

Bankruptcy ... .. ... 592

Coinage 573,575

Alien : British Subject and Naturalization ... 50, 478,

491, 600, 601, 603

Felony 492

Extradition 50, 635, 636, 770

Clerg3^ : House of Commons — Disabilities 304

Naturalization — Oaths ... ... ... ... 491

(British North America— Amending) ... 350, 514, 973

Pacific Islands 6.37

Australian Colonies Duties .50,

106, .393, 399, 691, 697-8

Regulation of Railways 896-7,910

Extradition 769

Judicature 769

Slave Tratle 797

Canada — Privileges 506

Pacific Islands 637

Canada : Copyright ... 595,694

(Judicature) 322

Appellate Jurisdiction 751

Merchant Shipping 50

South African Union 114

Foreign Jurisdiction 618

Territorial Waters Jurisdiction .359

Election Petitions... .. ... ... ... 496

Greenwich Time 332

TABLE OF IMPERIAL STATUTES.

44 and 45 Vic.

(1881) c. 3.

c. 58.

c. 68.

c. 69.

45 and 46 Vic.

(1882) c. 50.

c. 76.

46 and 47 Vic.

(1883) c. 51.

c. 52.

c. 57.

48 Vic.

(1884) c. 3.

48 and 49 Vic.

(1885) c. 23.

c. 60.

c. 63.

49 and 50 Vic.

(1886) c. 33.

c. 37.

50 and 51 Vic.

(1887) c. 70.

51 and 52 Vic.

(1888) c. 25.

c. 32.

c. 41.

c. 46.

c. 50.

.52 and 53 Vic.

(1889) c. 63.

53 and 54 Vic.

(1890) c. 9.

c. 26.

c. 27.

57 and 58 Vic.

(1894) c. 60.

58 and 59 Vic.

(1895) c. 34.

c. 44.

m and 64 Vic.

(1900) c. 12.

PAGE.

Judicial Committee 330,751

Army Act, 1881 51,117

House of Commons — Election Petitions ... ... 496

Fugitive OfiFenders 619,696

Municipal Corporations... ... ... ... . 476

Merchant Shipping 51,360

Corrupt and Illegal Practices Prevention ... ... 497

Bankruptcy .. 322,592

Patents, Designs, and Trade Marks .. ... 597, 598

Representation of the People ... ... ... 298, 308

Redistribution of Seats 298,308

Australasia— Federal Council .. 230, 263, 311, 345, 362,

363, 376-7, 570, 613, 614, 629

Patents ... ... ... ... ... ... 597

Patents, Designs, and Trade Marks ... ... ... 598

Judicial Committee ... ... ... ... 330, 751

Railway and Canal Traffic 745, 896-7, 906, 908-10

Imperial Defence — Australia ...

Local Government

Declaration : Oath

Patents, Designs, and Trade Marks

Acts of Parliament — Interpretation

117,562

475

488

598

.230, 322, .332, 352,
362, 475, 777, 792-3

400, 696, 797-9

Merchant Shipping

Western Australia : Constitution

Colonial Courts of Admiralty ...

Merchant Shipping ... 49,50,51,229,230,232,

301, 355, 357, 358, 3.59, 360, .362, 569, 651

Colonial Boundaries 263,311,378-9,640,975

Judicial Committee Amendment 244,751

Commonwealth of Australia Constitution 249, 262, 281

1^>

TABLE OF CASES

CITED IN THIS WORK.

Note ok American' Reports. — The first 90 volumes of the reports of the Supreme
Court of the United States are cited by the names of the different reporters (Dallas,
Cranch, Wheaton, Peters, Howard, Black, Wallace). From vol. 91 they are known as
the United States Reports (cited thus : — " 176 U.S."). The early reports of the Federal
Circuit Courts are cited by the names of the reporters, but since 1880 they are all
contained in the Federal Reporter (cited "Fed. Rep.").

Selected cases from the American State Courts down to 1869 are collected in the
"American Decisions" (100 vols.); from 1870 to 1887, in the "American Reports"
(60 vols.); and from 1888 to the present time in the "American State Reports."
Under the national reporter s\'stem, the decisions of the highest courts of the different
States are now contained in the following group of reports : — Atlantic Reporter,
North-eastern Reporter, North-western Reporter, Pacific Reporter, Southern Reporter,
South-eastern Reporter, South-western Reporter.

FAGK.

Abercrombie v. Dupuis (jurisdiction — residence), 1 Cranch (U.S.) 343 ... ... 777

Ableman v. Booth (suits by and against United States), 21 How. (U.S.) 506 ... 773
Ackman r. Town of Moncton (provincial tax on federal employees), 24 N.

Bruns. 103 ... ... ... ... ... . ... ... ... ... 553, 554

Addington r. Cann (Crown, when bound by legislation), 3 Atk. 154 ... ... 322

Add vston Pipe and Steel Co. v. United States ( commerce —monopolies), 175

U.S. 211 538-9

Ah Toy V. Musgrove (see Chung Toy I'. Musgrove)

Albany Bridge Case (interstate rivers — federal control), 2 Wall. (U.S.) 403 ... 886

Allan, Exp. : ;e Victoria Steam Nav. Board, 7 V.L.R. 248 («cc Victoria Steam

Nav. Board, He)

Allan V. Pratt (Privy Council — special leave to appeal), 13 App. Ca. 780 ... 761
Allen V. Hanson (winding-up foreign companies), 16 Quebec L.R. 85 ; and 18

S.C.R. (Can.)667 591,606

Almy V. California (inter-state commerce — State tax on bills of lading), 24

How. (U.S.) 169 847

American Insurance Co. «'. Canter (territories — government), 1 Pet. (U.S.) 511 972

American Publishing Co. v. Fisher (trial by jury), 166 U.S. 464 . ... 810

Amory v. Amory (jurisdiction — citizens of different States), 95 U.S. 186 ... 777

Anderson, Re (habeas corpus — jurisdiction of Queen's Bench), 30 L.J.Q.B. 129 781

v. Dunn (legal tender— construction), 6 Wheat. (U.S.) 204 ... .. 575, 652

Antelope, The (jurisdiction — penal laws of States), 10 Wheat. (U.S.) 66 ... 778
Armour Packing Co. v. Snyder (police power -oleomargarine), 84 Fed. Rep.

136 851

Armstrong v. Carson (action on a judgment), 2 Dall. (U.S.) 302 . ... 963

Ash V. Abdy (construction— statute), 3 Swans. 664 ... ... 365

Ashbury v. Ellis (civil process — service) (1893), App. Cas. 339 ... 616

Ashby I'. White (franchise). Smith's L. Cas. Vol. I. 268 ... ... ... ... 471, 756

Asher r. Texas (State tax on inter-state commerce), 128 U.S. 129 847, 858

Attorney-General v. Bradlaugh (parliamentary oath), 14 Q.B.D. 667 488

V. Great Ea.stern Ry. Co. (marginal note'i, 11 Ch. D. 449 ... 282

V. Powis (preamble) 1 Kav 186 ; 2 Eq. R. 566 285

r. Sillem (creation of right of appeal), 10 H.L.C. 720 ... 746

r. Weymouth (title— statute), Ambl. 23 281

for Canada v. Attorney -General of Ontario (pardoning

power), 3 Ont. App. 6 ; 19 Ont. Rep. 6 390,702,930,983

Attomev-General for Canada v. Flint ( Vice-Admiralty Courts — power to vest

jurisdiction), 3 S.C. (Nov. Scot.) 453; 16 S.C.R. (Can.) 707 709, 803

TABLE OF CASES.

PAGE.

Attorney-General of New South Wales v. Rennie (payment of members)

(1896), App. Cas. 376 500

Attorney-General of Ontario v. Attorney-General of Canada (assignment for

creditors) (1894), App. Cas. 189 588,591

Attorney-General of Ontario v. Attorney-General for Canada (Liquor Prohi-
bition) (1896), App. Cas. 348 513, 516, 547, 548

Attorney-General of Quebec v. Murray, 25 Lower Can. Jur. 208 .. 761

of Queensland v. Gibbon (non-attendance — parliament), 12

App. Cas. 442 442,482

Austin V. Boston Aldermen (statutes unconstitutional in part), 7 Wall. (U.S.)

694 796

Australian Smelting Co. v. Brit. Broken Hill Propr. Co. (appeal to Privy

Council), 23 V.1..R. 643, 20 A.L.T. 46 738

Ayers, i?e (jurisdiction — suit against State), 123 U.S. 443 ... ... ... 774

Baiz, ^e (jurisdiction-proof of), 135 U.S. 403 772

Baker v. City of Portland (Chinese labour- restrictive law) (U.S.), L.T. 18th

Oct., 1879, p. 403.- Todd, Gov. in Col. 2nd ed. p. 196 628

Baldwin j?. Bank of Newbury (State insolvency laws), 1 Wall. (U.S.) 234 ... 587

V. Franks (statute unconstitutional in part), 120 U.S. 678 ... ... 796

V. Hale (bankruptcy, discharge by State law), 1 Wall. (U.S.) 223 587

Bank of Australasia v. Nias (civil process— service), 16 Q.B. 717 ... ... 616

of Toronto v. Lambe (federal corporations — taxation), 12 App. Cas. 575

547, 553, 554

of United States v. Devaux (jurisdiction— corporation - not a citizen), 5

Cranch. (U.S.)61 777

Banks r. Orrell (civil process — service), 4 V.L.R. (L.) 219 ... ... ... 614

Banks, The v. Mayor (federal certificates to creditors subject to State taxation),

7 Wall. (U.S.) 16 949

Bank Tax Case (federal stock exempt from State taxation), 2 Wall. (U.S.) 200 559, 949

Barbier v. Connolly (State regulation of laundries) 113 U.S. 27 .. ... 853

Barney v. Baltimore (jurisdiction — resident ot territory), 6 Wall. (U.S.) 280 777

V. McCreery (qualification of members — laws), CI. and Hall (U.S.) 176 440, 475

Barque (/7iw.sa7i, The (commerce -navigation), 2 Story (U.S.) 455 ... ... 540

BaiTon r. Baltimore (trial by jury), 7 Pet. (U.S.) 243 808

r. Burnside (corporations— conditions of doing business), 121 U.S. 186

Barrow V. Wadkin (alien), 24 Beav. 1 ... ... ... ... ... 600

— r. Wadkin (statute — punctuation), 24 Beav. 327 282

Barry, Re (federal jurisdiction— common law offences), 136 U.S. 597 787, 788

Bartemeyer v. Iowa (police power— breweries). 14 Wall. (U.S.) 26 853

Barton v. Taylor (parliamentary privilege), 1 1 App. Cas. 197 504

Bauman ». Ross (just compensation), 167 U.S. 548 641

Baxendale r. ilastern Counties R. Co. (reasonable rate — common law), 27

L.J.C.P. 1.37 ... 916

V. Great Western R. Co. (delivery charges — undue preference), 28

L.J.C.P. 69 ... .. .. ^ .„ ... ... 908

Great Western R. Co. (delivery charges - undue preference), 28

L.J.C.P. 81 908

Beadell v. Eastern Counties R. Co. (railway cab-stand— undue preference), 26

L.J.C.P. 2.50 „ ... ... 907

Beadon r. King (construction-statute), 22 L.J. Ch. Ill 365

Beal r. Ford (residence), 3 C. P. D. 78 776

lieflard, /fc (precedence of .Judges), 7 Moo. P. C. 23 ... 727

lieers v. Arkansas (jurisdiction— suit against State), 20 How. (U.S.) 527 ... 774

Belanger v. Caron (plea of unconstitutionality), 5 Quebec L.R. 25 693

Bell ?•. Holtby (construction -statute), L.R. 15 Eq. 178 364

Bell Telephone Co., /^e (patent— tribunal), 7 Ont. Reps. 605 598

Bentley r. Rotherhani Local Hoard (title -statute), 4 Ch. 1). 588 281

Beresford-Hope r. Lady Sandhurst (election— women), 23 Q.B.D. 79 475

Bethell t>. Hihlvard (marriage -domicile), 38 Ch. D. 220 608

Bingham »;. CatKit (jurisdiction— residence of parties), 3 Dall. (U.S.) 382 ... 777

Hirtwhistle r. Vardill (marriage— domicile— title of statute), 7 CI. and Fin. 895 281
Blake p. McClung (corfMiration not citizen), 172 U.S. 239 .. .. ... 777,961

f- -Midland Ry. Co. (title— statute), 18 Q.B. 93 ... ... '.. ... 281

Blanchard v. Sprague (patent terms and conditions), 2 Story (U.S.) 164 ... 597

Bledsoe's Cawj (resignation of Senators), CI. and Hall (U.S.) 869 442

Boom Co. f. Patterson (resumption -compensation -jurisdiction), 98 U.S. 403 785

Borgmeyer V. Idler (construction of treaty), 159 U.S. 408 770

TABLE OF CASES.

PAGE.

Bowman v. Chicago, &c., R. Co. (police power— inter-state free trade). 125

U.S. 465 518, 528, 536, 537, 848, 851, 856

V. Farnell, 7 N.S.W. L.R. I (see Famell v. Bowman)

Boyer, ^xjff. (artificial stream — federal control), 109 U.S. 629 .. ... .. 883

Boynton v. Blaine, 139 U.S. 306 (see U.S. ex rel. Boynton v. Blaine)

Bradfield r. Roberts (establishment of religion), 175 U.S. 291 ... ... ... 953

Brashear r. Mason (mandamus to federal officer), 6 How. (U.S.) 92 ... 782

BreuU, Exp., re Bowie (residence -defined), 16 Ch. D. 484 960

Bridge Co. v. United States (federal control of bridges), 105 U.S. 470 ...517, 641, 884, 970
Brig Wilson, The v. United States (commerce includes conveyance), 1 Brock.

(U.S.) 423 515,540,873

Brimmer v. Rebman (commerce — State cannot prohibit importation), 138 U.S.

78 851,853,944

Briscoe v. Bank of Kentucky (legal tender — construction), 11 Pet. (U.S.) 257 575
Briton Medical Life Ass., lie (federal power foreign insurance), 12 Ont.

Reps. 441 592, 606

Broder v. Water Co. (riparian rights —reasonable use). 101 U.S. 274 ... ... 890

Broderick's Executor v. Magraw (legal tender), 8 Wall. (U.S.) 639 575

Brook, i?e (service of civil process), 33 L.J. C. P. 246 .. ... ... ... 614

17. Brook (marriage—deceased wife's sister), 9 H.L. Cas. 193 ... ... 609

Brown v. Houston (State tax on exports), 114 U.S 622 ... 845, 846, 848, 855, 856, 943

V. Maryland (State tax on imports), 12 Wheat. (U.S.) 419

286, 515, 520, 524-5. 527, 528, 537. 539, 846, 943-4, 959
Brownsville Commissioners v. League (mandamus to federal officer), 129 U.S.

493 782

Bryant v. Reading (appeal — "final and conclusive "), 17 Q.B.D. 128 746

Buchanan v. Rucker (civil process — ser\nce), 9 East 192 ... ... ... ... 616

Buckley v. Edwards (appointment of Judges) (1892), App. Ca. 387 727, 729

Buffington v. Day, 11 Wall. (U.S.) 113 (see Collector v. Day).

Burdett v. Abbot (Parliamentary privilege —contempt), 5 Dow 165 ; 14 East 1 502

Buron i>. Denman (Act of State), 2 Exch. 167 709

Burrow-Giles Litho. Co. v. Sarony (copyright in works of art). 111 U.S. 53 ... 596

Caird r. Sime (copyright), 12 App. Cas. 326 593

Caldwell t'. Van Vlissengen (patents), 21 L.J. Ch. 97 597

Caledonian R. Co. v. North British R. Co. (construction — statute), 6 App.

Cas. 114 365

Calhoun v. Lanaux (federal jurisdiction — how far exclusive), 127 U.S. 6.34 ... 803
California v. Central Pacific R. Co. (Federal power to construct railways —

State tax on federal franchise), 127 U.S. 1 516, 518, 520", 541, 552, 847

Californian Fig Syrup Co. 's trade mark (1888), 40 Ch. D. 620 599

CaUender, Sykes and Co. v. Colonial Sec. of Lagos (application of English

bankruptcy law) (1891), App. Ca 460 592

Calvin's Case (natural-born subject), 7 Coke's Reps 1 ... 478,599

Canada Sugar Refinery Co. v. The Queen (importation — when complete)

(1898), App. Ca. 735 859

Canadian Pacific Nav. Co. v. Vancouver City (quarantine), 2 Brit. Colu. Rep.

193 568

Cannon v. New Orleans (wharfage charge— State law), 20 Wall. (U.S.) 577 .. 5.36, 858

Capital Traction Co. y. Hof (trial by jury), 174 U.S. 1 810

Cardwell i'. Bridge Co. (navigable river— bridge), 113 U.S. 205 858, 885

Carew, Exp. (leave to appeal— criminal case) (1897), App. Ca. 719 752

Carnatica (Nabob of) v. East India Co. (judicial and political powers), 1 Ves.

J. 371; 2 »d. 56 723

Cameali7.Banks(jurisdiction—citizensof different States), 10 Wheat. (U.S.) 181 777
Carpenter v. Pennsylvania (pardoning power — Federal bankruptcy laws —

Constitution— construction), 17 How. (U.S.) 456 - 587

Carpenters' Co. v. Hay ward (questions of fact and law), 1 Dougl. 374 744

Carter v. Molson (Privy Council— special leave to appeal), 8 App. Ca. 530 .. 761

Carter Medicine Co. 's Trade Mark (1892), 3 Ch. 472 599

Cartledge v. Cartledge (custody of children), 31 L.J. Mat. 85 611

Chavasse, ^a: par^e, re Grazebrook (proclamation), 34 L.J. Bky. 17 331

Cherokee Nation v. Southern Kansas R. Co. (railway construction — federal

authority— compensation), 135 U.S. 641 .. .. 520, 541, 641, 874, 921
Chicago and Alton R. Co. v. Wiggrins Ferry Co. (judicial notice of State laws),

119 U.S. 615 ... .. 746

Chicago and Grand Trunk R. Co. v. Wellman (validity of statute— friendly

suit), 143 U.S. 339 767

TABLE OF CASES.

PAGK.

Chicago Burlington, &c., R. Co. v. Iowa (railroads— State regulation), 94

U S 155 ••• •■■ ••• ••• •• ••• ••• ■•• ^^"^

Chinese (American) Exclusion Case, 130 U.S. 581 .. ... 628,769

Chinese (Brit. Columbia) Tax Case, Todd Pari Gov. Col. 2nd ed. pp. 194 and 557 62/

Chisholm v. Georgia (jurisdiction -suits against States), 2 Dall. (U.S.) 419

286, 336, 774, 806

Christmas v. Russell (State judgments conclusive), 5 Wall. (U.S.) 290 963

Christy, Exp. (prohibition to inferior court), 3 How. (U.S.) 292 783

Chunc Toy v. Muserove (aliens— exclusion), 14 V.L.R. 349; (1891) App.

(fas. 272 . 390, 391, 600, 624, b26, 708, 710

Church of the Holy Trinity v. United States (Sunday— Christian religion),

143 U.S. 457 ... ••• 289,290,952

Chy Lung v. Freeman (State tax on foreign passengers), 92 U.S. 275 623, 855

Cincinnati, &c., R. Co. v. Inter-state C.C. (objects of Inter-state Commerce

Act — commission an executive body), 162 U.S. 184 ... 898, 900, 911, 915

Cissel V. McDonald (inhabitant of federal territory— status), 16 Blatch. (U.S.)

150 659

Citizens' Ins. Compy. v. Parsons (insurance contracts— provincial law),

7 App. Cas. 96 544,547,583,585

Civil Rights Cases (judicial power— to declare laws invalid), 109 U.S. 3 ... 792

Claflin v. Houseman (federal jurisdiction— how far exclusive), 93 U.S. 130 ... . 803

Clark V. Barnard (jurisdiction — suit against State), 108 U.S. 436 ... ... 774

Clarke and the Union Fire Ins. Co., Jie (winding-up— federal control), 14 Ont.

Reps. 618 591

Clarke's Design, ^e (trade marks) (1896), 2 Ch. 38 598

Clarke, ii/a; 7>ar<e (unconstitutional law — Aa6fias), 100 U.S. 399 .. ... ... 470

Clarkson v. Ontai'io Bank (assignment for creditors), 15 Ont. App. Reps. 166 591

Claydon v. Green (marginal note), L.R. 3 C.P. 511 ... ... 281

Clayton v. Utah (federal territories— operation of laws), 132 U.S. 632 972

Clegg V. Grand Trunk R. Co. (federal corporations— powers), 10 Ont. Reps.

708 ... 579

Clinton Bridge (the federal control of bridges), 10 Wall. (U.S.) 454 ... 517, 858, 884
Clough V. Curtis (territorial courts— constitutionality), 134 U.S. 361 ... ... 382

Clyde Nav. Trustees v. Adamson (Crown property exempt from taxation),

4McQ. H.L. 931 322

Clyde Nav. Trustees v. Laird (statute — construction), 8 App. Cas. 658 .. 365

Coal Co. V, Blatchford (jurisdiction — citizens of different States), 11 Wall.

(U.S.) 172 777

Coe V. Errol (commerce— when it begins), 116 U.S. 517 519, 539, 846, 904

Cohens v. Virginia (jurisdiction— suits against States — "arising under the

Constitution"), 6 Wheat. (U.S.) 264 429,575,658,773,790,806

Cole r. Cunningham (State records— faith and credit), 133 U.S. 107 962,963

Collector V. Day (federal tax on salary of State officer), 11 Wall. (U.S.) 113

551 555 734 950
Collett V. Collett (naturalization— State law), 2 Dall. (U.S.) 294 ... ' ... ' '601

Collingwood r. Pace (natural-born subject), 1 Vent. 413 478

Collins V. New Hampshire (police power— prohibition of sale), 171 U.S. 30 ... 851

V. Welch (construction— statute), 5 C.P.D. 27 364

Collins Co. V. Brown (alien— trade marks), 3 Jur. (N.S.) 929 J 600

I'. Reeves (alien— trademarks), 4 Jur. (N.S.) 865 600

Colorado Central Mining Co. v. Turck (original jurisdiction), 150 U.S. 138 ... 785

Colson r. I^ewis (jurisdiction— grants of different States), 2 Wheat. (U.S.) 377 801

Commercial Bank of India, Re (British corporation — winding-up in colony),

L.R. eEq. 517 .. ... .. 605

Commercial Bank of South Australia, Re (winding-up), 33 Ch. D. 174 ... 606

Commonwealth r. Smith (validity of law), 4 Binney (Penns.) 123 796

Connell v. Neill and Co (service 'out of jurisdiction— British subject), 7 W.N.

(N.S.W.)6 •" 615

Conner V. Elliott (federal privileges and immunities), 18 How. (U.S.) 691 ... 960

Cook V. Peimsylvania (inter-state commerce— State tax on auctioneers), 97

U.S. 5(56 847,857

Cooley r. Port Wardens (pilots— state control), 12 How. (U.S.) 299

^ , 515, 516, 523, 629-30, 540, 657, 853, 858, 873

Coomlxir r. Berks Justices (title— statute), 9 Q.B.D. 17 281

Copeman r. (;allant (preamble), 1 P. Wms. 317 285

Corfield v. Coryell (commerce defined— incidents), 4 Wash. (U.S. ) C.C. 371 516, 616, 959
Corson r. Maryland (interstate commerce- State licenses), 120 U.S. 502 ... 847

TABLE OF CASES.

CotS V. Watson (provincial tax on assets in insolTency), 3 Quebec L. Reps.

157 ; 2 Cartwright .343 553

Covington and Cincinnati Bridge Co. v. Kentucky (inter-stat« railway rates),

154 U.S. 204 521

Cowan V. Milbourn (Christian religion), L.R. 2 Ex. 234 951

Cox, Exp. (mandamus to officer of Crown), 14S.C.R. (N.S.W.) 287 782

Crandall v. Nevada (State tax on passengers), 6 Wall. (U.S.) 35 ... 529, 958, 959

Craufurd r. Att. -Gen. (Crown — bankruptcy), 7 Price 2 ... ... ... ... 321

Crutcher v. Kentucky (foreign express companv — State licence), 141 U.S. 47 847

Cucktield Burial Board, Jte (Crown— when bound), 24 L.J. Ch. 585 321

Gushing i*. Dupuy (federal insolvency law— appeal to Pri\'y Council — *' final "),

5 App. Cas. 409 588, 589, 746, 747, 760, 761

Cuvillier »'. Aylwin (prerogative of appeal), 2 Knap 72 ... .. 746,761

Daniel Ball, The (inter-state commerce —beginning and duration — navigable

waters), 10 Wall. (U.S.) 557 515,517,519,882

D'Arcy r. Ketchum (State judgment — when conclusive), 11 How. (U.S.) 165 963

Davis V. Beason \biganiy and polygamy), 133 (U.S.) .3.33 939, 953

V. Packard (ambassadors — " matters affecting'"'), 7 Pet. 275 ... ... 771

r. Regina (appeal from State courts to Pri\-y Council), 1 Vic. R. Eq. 33 738

Dean v. Dawson (appeal from State comls to Privv Council), 9 N.S.W. L.R.

Eq. 27 .' 738

Debs, Ee (enforcement of executive power by injunction), 158 U.S. 564 ... 965

Decatur v. Paulding (mandamus to federal officer), 14 Pet. 497 782

Deeming, jLxp. (leave to appeal— criminal case) (1892) App. Ca. 422 752

De Geer v. Stone (natural-born subject), 22 Ch. D. 243 .. 478

Delahoyd, Se (process civil, defined), 11 Ir. Ch. R. 404 616

Delondre r. Shaw (copyright - foreigner), 2 Sim. 237 594

Denaby Main CoUiervCo. v. Manchester R. Co. (group rates — equality clause —

undue preference), 13 Q.B.D. 674; 147rf. 209 ; 11 App. Ca. 97 "74.5, 906, 908-9, 921
Denton v. Manners (common law— when altered bv statute), 27 L. J. Ch. 199,

623 .: .365

Devine v. HoUoway (Cro\vn— demise j, 9 Week. Rep. 642 462, 463

Dewhurst v. Coulthard (judiciary— extra-judicial opinions), 3 Dall. (U.S.) 409 766

DiU, Ke (parliamentary pri\'ilege), 1 W. and W. (L.) (Vic.) 171 505

V. Murphv (parliamentary privilege), 1 W. and W. (L.) (Vic.) 342; 1

Moo. P.C. (N.S.)487 505

Dillett, Be (leave to appeal -criminal case), 12 App. Ca. 4.59 752

Dobbins v. Erie County (State tax on federal employee), 16 Pet. (U.S.) 435

551 552 553 554 949
Doe d. Bywater r. Brandling (preamble), 6 L..J. (O.S.) K.B 162 ... ' ... ' ' 285

Duroure r. .Jones (natural-born subject), 4 Term Rep. 300 478

Doggett v. Railroad Co. (federal corporation— sinking fund), 99 U.S. 700 ... 382

Doherty r AUman (judicial discretion), 3 App. Ca 728 759

Donald v. Scott (imported and domestic liquor - discrimination), 67 Fed. Rep.

(U.S.) 854; 165 U.S. 58 947

Donaldson 1-. Beckett (copyright), 4 Burr. 2408 593

Dooley r. Smith (legal tender), 13 Wall. (U.S.) 604 575

Dover r. Maestaer (prerogative of pardon), 5 Esp. 92 . ... 630

Downham v. Alexandria Council (State tax on business). 10 WalL (U.S.) 173 856

Doyle V. Continental Insurance Co. (insurance), 94 U S. .535 583

f. Falconer (parliamentary pri\nlege), L.R. 1 P.C 328 504

Dred Scott v. Sandford (citizenship jurisdiction), 19 How. (U.S.) 393

286, 470, 602, 784, 956
Dubuque, &c., R. Co. v. Richmond, 19 Wall. (U.S.) 584 (see Railroad Co. v.

Richmond)

Ducat V. Chicago (corporations -inter-state rights), 10 Wall. (U.S.) 410 ... 961

Duncan v. Darst (State insolvency law— discharge), 1 How. (U.S.) 301 .. 587

Durousseau v. United States (federal jurisdiction), 6 Cranch (U.S.) 307 ... 738

Dynes r Hoover (naval and military law). 20 How. (US.) 65 564

Eastern Counties Ry. Co. r. Marriage (heading— statute), 9 H.L. Cas. 32 ... 281
Edwards' Case (resignation of members —notice to State Governor), CI. and

Hall>U.S.)92 437

Edye v. Robertson, 112 U.S. 580 (•see Head Monev Cases)

Eilenbecker v. District Court (trial by jury), 134 U.S. 31 808

Eldridge v. Trezevant (federal control of navigable waters). 160 U S. 452 ... 883

Electors v. Bailey (inhabitant -definition), CI. and Hall (U.S.) 411 477

AVtza A'et^A, The (navigation and shipping), 3 Queb. L.R. 143 874

TABLE OF CASES.

PAGE.

Elkanv. Do La Juvenay (extra-territorial service), 22 A. L.T. 34 ... ... 615

Ellis V. McHenry (bankruptcy- international), L.R. 6 C.P. 228 592

Elphinstone v. Bedreechund (treaty — municipal rights), 1 Knapp 316 ... ... 769

Emanuel v. Constable (preamble), 3 Russ. 4^36 ... ... ... ... ... 285

Embrey v. Owen (riparian rights — reasonable use), 6 Exch. 353... ... ... 892

Emert V. Missouri (State tax on sales), 156 U.S. 296 ... ... ... ... 848

Ervine's Appeal (legislative power), 11 Penn. St. 256 ; 55 Amer. Dec. 499 ... 721
Escanaba Co. v. Chicago (commerce —river wholly within a State — federal

control— bridges), 107 U.S. 678 531,534,852,883

Evans t?. Eaton (copyright), 3 Wheat. (U.S.) 454 597

V. Hiidon (Provincial tax on salary of federal employee), 22 Lower Can.

Jur. 268 ; 2 Cartwright 346 553

Evershed v. London and N.W.R. Co. (competitive rates — gratuitous cartage —

undue preference), 2 Q.B.D. 254, 3 id. 134, 3 App. Ca. 1029 906, 908

Exchange, The v. McFaddon (federal power to exclude aliens), 7 Cranch (U.S.)

116 564,628

Exchange Bank of Canada v. Regina (Crown — priority of creditors), 11 App.

Cas. 157 322

Falkland Islands Co. v. Regina (prerogative of appeal), 1 Moo. P.C.N. S. 299 750

i''a»ia. The (operation of treaty), 5 Rob. Adm. 106 ... ... ... ... 769

Fargo V. Michigan (inter-state commerce defined— State tax), 121 U.S. 230 ... 517, 847
Farnell v. Bowman (liability of Crown for tort), 7 N.S.W.L.R. 1 ; 12 App. Ca.

643 805

Fenton v. Hampton (parliamentary privilege), 11 Moo. P.C. 347 ... ... 604

V. Livingstone (marriage — lex loci contractus) 3 McQ. H. L. 497 ... 609

Fertilizing Co. v. Hyde Park (police powers— noxious trades), 97 U.S. 659 ... 853

Ficklen v. Shelby Taxing District (State tax on business), 145 U.S. 1 849

Firebrace ?;. Firebrace (divorce— jurisdiction), 47 L.J. Prob. 41 ... 611

Fletcher 17. Peck (validity of laws), 6 Cranch 87 796

V. Rhode Island, 5 How. (U.S.) (see License Cases)

FongYue Ting t'. United States (treaty), 149 U.S. 698 769

Ford V. London and S.W.R. Co. (special rates to carriers — undue preference),

60 L.J.Q.B. 130 906

Forsyth v. United States (government of territories), 9 How. (U.S.) 571 ... 972

Foster v. Davenport (commercial marine — federal control), 22 How. (U.S.) 244 542

V. Kansas (police power— breweries), 112 U.S. 201 853

V. Neilson (treaty-law of the land), 2 Pet. (U.S.) 253 769

V. Port Wardens (survey of trading vessels— State law), 94 U.S. 246 ... 943

Fowler v. Lindsey (controversies between States), 3 Dall. 411 774

Fox V. Ohio (currency law — offences), 5 How. (U.S.) 410 573

Franconia, The : Reg. v. Keyn, 45 L.J.M.C. 17 ; 2 Exch. D. 63 (see Regina v.

Keyn)
Fredericton, City of v. The Queen (Provincial control over liquor traffic), 19

N. Bmns, (3 Pugs, and Burb.) 139 ; 3 S.C.R. (Can.) 505 349, 543, 545

Freight Tax Case (see State Freight Tax Case)

Freme w. Clement (construction -statute), 44 L.T. 399 365

Garden Gully, &c., Co. v. McLister (appeal from State courts to Privy

Council), 1 App. Ca. 39 738

Garland, Ex parte (oath— religion— State laws), 4 Wall. (U.S.) 333 ... 953

Gamett, /^e (extent of maritime pc>wer), 141 U.S. 1 874

Gartoii V. Bristol, &c., R. Co. (facility to carrier— undue preference), 28

L.J.C.P. 306 _ .. ... 908

Garton v. Great Western R. Co. (delivery charges - undue preference), 28

L.J.C.P. 158 908

Gas«ios v. Ballon (alien— naturalized— status), 6 Pet. (U.S.) 761 602

Geddes, Exp., Re Mowat (sequestration— relation back), 1 Glyn and J. 414 ... 692

Goer V. Connecticut (commorce— game laws), 161 U.S. 519 854

Oenevtee Chief, The, v. Fitzhugh (admiralty jurisdiction), 12 How. (U.S.) 443 800

(Georgia r. Stanton (judicial power— political question), 6 Wall. (U.S.) 50 ... 723
Gibbons r. Ogdon (commerce defined ; Constitution— construction), 9 Wheat.

(U.S.) 1 515, 516, 521-4, 525, 628, 536, 538, 578, 657, 796, 796, 904

Gibson, Exp. (mandamus tfj officer of Crown), 2 N.S.W. L.R. 202 782

— r. United States (federal control of navigable watei-s), 166 U.S. 269 ... 883

Oilman v. Lockwofxl (bankruptcy— discharge by State laws), 4 Wall. (U.S. ) 409 687
— — - V. Philadelphia (commerce-bridge), 3 Wall. (U.S.) 713... 631-2, 540, 852, 858
Gleich, i?e (N./.) (extra-territorial jurisdiction), Todd, Pari. Gov. Col. 2nd

''^- 303 618, 619, 630

TABLE OF CASES.

Gloucester Ferry Co. v. Pennsylvania (State tax on inter-state ferry company),

114 U.S. 196 515, 534-6, 846, 852, 853, 855, 873, 885

Goodwin v. Caraleigh Phosphate and Fertilizer Works (inspection laws), 119

X. Carolina (U.S.) 120 _ 944

Gordon, £xp. (prohibition to inferior court), 1 Black (U.S.) 503 783

Gorely, Exp., re Barker (preamble to section), 34 L.J. (B.) 1 ... . 285

Gosse't V. Howard (Parliamentary privilege — contempt), 10 Q.B. 359 502

Gov. -Gen. of Dominion v. Four Pro^^nces (Canadian Liquor License Acts-
validity), Wheeler, C.C. 144 ... ... ... 547

Graham, Exp. (prohibition to inferior court). 10 Wall. (U.S ) 541 783

Grand Junction R. Co., Re (incorporation of companies), 45 Upper Can.

Q.B. 302 579

Great Western R. Co, v. Sutton (special rates to carriers— undue preference),

L.R. 4HL. 226 906

Green, i?e (mandamus to federal officers), 141 U.S. 325 • 778

1-. Regina (common law— when altered by statute), 1 App. Cas. 513 365

V. Van Buskirk (State judgment— faith and credit), 7 V> all. (U.S.) 139 963

Green Bay and Mississippi Co. v. Patten Paper Co. (federal control of navigable

waters), 172 U.S. 58, 173 U.S. 179 ... ... 884

Grimes v. Eddy (police power— exclusion of infected cattle), 126 Missouri 168 851
Guckenheimer'r. Sellers (State tax on imports — original package), 81 Fed.

Rep. (U.S.) 997 846

Gulf, Colorado, and Santa Fe R. Co. v. Hefley (inconsistency of laws), 158

U.S. 98 939

Guyr. Baltimore (wharfage — inter-state free trade), 100 US. 434 532, 857

Habeas Corpus Cases, 100 U.S. 371 {see Siebold, Exp.)

Haggin V. Comptoir D'Escompte de Paris (foreign corporation), 23 Q.B.D. 519 605

Hall V. London Brighton, &c., R. Co. (railway rates), 15 Q.B.D. 505 905

Halton r. Cove (preamble), 1 B. and Ad. 538 284

Hamilton r. Vicksburg, &;c., R. Co. (bridge— na\ngation), 119 U.S. 280 ^.. 858, 885

Hammersmith and City R. Co. v. Brand (heading — statute), L.R. 4 H.L. 171 281

Hampton v. McConner( faith and credit), 3 Wheat. (U.S.) 234 963

Hanley I?. Donoghue (faith and credit), 116 U.S. 1 ... . ... ... 962

Hans V. Louisiana (jurisdiction — suit against State), 134 U.S. 1 774

Harding r. WilUams (preamble), 14 Ch. D. 197 285

Harman r. Chicago (inter-state commerce— State licence), 147 U.S. 396 847, 849, 852
Harris v. Cockermouth, &c., R. Co. (competition — undue preference), 27 L.J.

C.P. 162 907

Harris f. Hardeman (State judgment — faith and credit), 14 How. (U.S.) 334 963

Harvey v. Famie (marriage — lex loci contractus), 8 App. Cas. 43 ... ... 609

Hatch't;. Willamette Iron Bridge Co. (federal control over bridge), 6 Fed.

Rep. .326 525

Haybum's Case (extra-judicial opinions), 2 Dall. (U.S.), 409 ... ... ... 766

Hays V. Pacific Mail Steamship Co. (State tax on vessels), 17 How. (U.S.) 596 858
Head Money Cases (taxation of alien immigrants — treaties), 112 U.S. 580

426, 520, 542, 550, 557, 769

Becla Foundry Co. r. Walker (trade mark), 14 App. Cas. 550 598

Henderson v. Major of New York (State tax on foreign passengers), 92 U.S.

259 623,847,853,855,876

Hepburn r. Griswold (legal tender), 8 Wall. (U.S.) 603 575,581

Hill t;, Thompson (patent), 2 xVIoore 224 ^ 597

V. United States (suits against United States), 9 How. (U.S.) .386 773, 806

Hillimore v. Colbourne (provincial tax on federal employee), 32 Can. Law. J.

Reps. N.S. 201 553

Hine, The, v. Trevor (admiralty jurisdiction), 4 Wall. (U.S.) 555 800

Hitz, i?a:/). (jurisdiction — proof of), 111 U.S. 766 ... -■ ... ... 772

Hodge V. The Queen (provincial control over liquor traffic), 9 App. Cas. 117... 509, 546

Hoge's Case (election laws), CI. and Hall (U.S.) 135 427

Holbom Union v. Chertsey Union (residence), 54 L..LM.C. 53 -477

Holmes 1-. Jennison (extradition). 14 Pet. iU.S). 540 ... 620,6.35

Home Insurance Co. v. New York (State tax on federal bonds— invalid),

134 U.S. 594 .. 5.59

Hope Insurance Co. v, Boardman (jurisdiction — corporation not a citizen),

5Cranch(U.S.)57 777

Homer r. United States (treaty), 143 U.S. 570 ... 769

Houston V. Moore (naval and military power — concurrent jurisdiction),

5 Wheat. (U.S.) 1 565, 80a

TABLE or CASES.

Howe Machine Co. v. Gage, 100 U.S. 675 (see Machine Co. r. Gage)

Huber v. Reily (State control over sufiFrage), 53 Penns. State Reps. 112 ... 468

Hudson's Trade Marks (18S6), 32 Ch. D. 311 599

Hunter r. Nockolds (title— statute), 19 L.J. Ch. 177 281

Huse V. Glover (commerce — improvement of rivers), 119 U.S. 543 ... 540, 850,. 885
Huson V. South Norwich (provincial control over liquor traflSc), 24 S.C.R.

(Can.) 146 513

Hvlton V. United States (direct taxes defined), 3 Dall. (U.S.) 171 550

Illinois V. Illinois C. R. Co , 146 U.S. 387 {see State v. Illinois C.R. Co.)
Inman S. S. Co. v. Tinker (inter-state commerce — State wharfage tax), 94

U.S. 238 847,854

Insurance Co. v. Massachusetts, 10 Wall. (U.S.) 566 (see Liverpool Insurance

Co. V. Massachusetts)
Insurance Co. v. Morse, 20 Wall. (U.S.) 445 (see Liverpool Insurance Co. v.

Morse)
Inter-State Commerce Commission v. Alabama Midland R Co. (commission

may not prescribe rates), 168 U.S 144 521,745,898,912

Inter-State Commerce Commission v. Baltimore and Ohio Co. (power of the

commission — wholesale rate — undue preference), 145 U.S. 263 521, 905, 911, 914
Inter-State Commerce Commission v. Brimson (power of commission to

summon witnesses), 154 U.S. 447 521,898,903

Inter-State Commerce Commission v. Cincinnati, &c., R. Co. (powers of

commission— unduly low rates), 167 U.S 479 898,900,912,916

Intor-State Commerce Commission v. Detroit Grand Haven, &c., R. Co.

(competition — undue preference), 167 U.S. 633 ... ... ... ... . 912

Iron Clay Brick Manuf. Co., Rf (bankruptcy — winding up— provincial laws —

validity), 19 Ont. Keps. 113 589

Isaacson v. Durant (aliens). 17 Q.B.D. 54 ... ... .. ... ... ... 478

Jackson, Ex parte (post offices— lotteries — federal power), 96 U.S. 727 ... 560

Jeflerys f. Boosey (copyright), 4 H L. Cas. 815 ... ... ... ... ... 593

Johnston v. Minister of St. Andrew's Church, Montreal (appeal to Privy

Council— " final"), 3 App. Ca. 159 746,747,752

Jolly V. Terre Haute Draw-bridge Co. (vessels carrying federal commerce,

protected), 6 McL. (U.S ) 237 541

Jones t'. lyeague (jurisdiction — resident of State), 18 How. (U.S.) 76 777

Juilliard V. Greenman (legal tender— construction), 110 U.S. 421 ... 559,575,581
Junction R. Co., i?e, 45 Upper Can. Q B.R. (see Grand Junction R. Co., Re)
Kaufi'man Milling Co v. Missouri Pacific R Co. (federal power to regulate

inter-state carriage), 2 Inter-state Com. Reps. 400 521

Kearnsr. Cord wainers Co. (preamble), 28 L.J. C. P. 285 285

Kelley V. Rhoads (State control over depasturing cattle, 51 Pac. Rep. Wyo.

(U.S.) 593 ... 519

Kempe's Lessee v. Kennedy. (inferior courts), 5 Cranch (U.S.) 185 726

Kemlall v. United States (suits against United States), 12 Pet. (U.S.) 524 ... 773, 806
Kennedy v. Purcell (disputed election— appeal to Privy Council), Wheeler

C.C.,314 '.': .. .: 497,498

Kennett v. Chambers (judicial power— political question), 14 How. (U.S.) 38 723

Kenrick V. Lawrence (title— statute), 25 Q.B.D. 99 ... 281

Kentucky v. Dennison (inter-state extradition — political question), 24 How.

(U.S.) 66 , ^ 620,775

Kentucky Bridge Co. v. Lfmisville, Ac. , Co. (Inter-State Commission— execu-
tive power), 37 Fed. Rep. (U.S.) 567 898

Kidd V. Pearson (production not commerce — sale of alcohol — State regulation

—valid), 128 U.S. 1 :. ... 518,855

Kielley v. Carson (colonial legislature— prerogative— parliamentary privilege),

4 M.X.. P.C. 63 ... . ... ..* ... *^ ^^.., ^.:. 309,504

KillxMim ». Thomp.son (qualification of members), 103 U.S. 168 382,475

Killam, Re (Provincial insolvency laws— validity), 14 Canada L.J. (N.S.) 242 589
Kimmish v. Ball (pr)lice power— importation of diseased cattle - State law-
valid), 129 U.S. 217 853,857,960

King, 'Ihe (see Rex)

Kinney v. Dudman (federal bankruptcy and insolvency laws), 2 Russ. and

ChcR., Nova Scotia Reps. 19 589

Klein, Re (bankruptcy and insolvency— federal control), i How. (U.S.) 277 ... 587

Kold r. United States (eminent domain), 91 U.S. 367 367,640

Koj)M V. Regina (leave to apy)eal— criminal case) (1894), App. Cas. 650 ... 752

Krefft, Exp. (mandamus to officer of Crown), 14 S.C.R. (N.S. W.) 446 ... 782

TABLE OF CASES.

PAGE.

Lake Shore and Michigan R. Co. v. Ohio (navigable waters), 165 U.S. 365 ... 882

Lamplugh i\ Norton (construction — statute), 22 Q.B.D. 452 ... ... ... 364

Lanmans Case (Senators — vacancy), CI. and Hall (U.S.) 871 ... 4.37

Lanz V. Randalls (foreigaer — right to vote — citizenship), 4 Dill. (U.S.) 425 ... 602

Lapierre 1/. Mcintosh (alien— disability), 8 L.J.Q.B. 112 600

Latless r. Holmes (commencement of Act), 4 T.R. 660 ... ... . .. 331

Lautour v. Teesdale (marriage — Cauon law), 2 Marsh. 243 ... ... ... 609

Leather Cloth Co. v. American Leather Cloth Co. (trade mark), IIH. L. Cas.

523 598

Lees V. Summersgill (preamble), 17 Ves. 508 .. ... 285

Legal Tender Cases (construction of constitution), 12 Wall. (U.S.) 457 575, 581, 796

Legal Tender Case, 110 U.S. 421 (see Juilliard r. Greenman)

Leisv I'. Hardin (State tax on imported goods— invalid), 135 U.S. 100

515, 518, 528, 530, 537-8, 846, 848, 850, 851, 853, 943, 946

Leloup i\ Port of Mobile (inter-state telegrams — State licenses), 127 U.S. 640 541, 847
Lempriere r. New Pinnacle Group S.M. Co. (service out of jurisdiction -

British subject), 21 A. LT. 182 615

Lenoir v. Ritchie (appointment of Queen's counsel), 3 S.C.R. (Can.) 575 ... 693
Leprohon v. City of Ottawa (Pro\incial tax on federal oflBcer), 2 Ont. App.

Rep. 522 ... . • 551, 553. 554, 555, 949

Letellier's Case (removal of Lieutenant-Governor), Todd, Pari. Gov. in Col.

(2nd Ed.) p. 612 732

Lewis I-. Graham (residence defined), 20 Q.B.D. 780 960

License Cases (liquor), 5 How. (U.S.) 504 517, 518, 527-8. 538, 602

License Tax Cases (police power), 5 Wall. (U.S.) 462 ... ... ... ... 555,850

Lindsay v. Cundy (interpretation clause), 1 Q B.D. 348 ... ... ... ... 365

Ling Sing v. Washburn (Chinese — discriminating laws), 20 Calif. Reps 534 ... 628

Lionberger r. Rouse (State tax on shares in national banks), 9 Wall. (U.S.) 468 949
Liquor Prohibition Case (Canada) (1896;, App. Ca. 348 (see Attorney-General

of Ontario v. Att. (Jen. for Canada)
Lithographic Co. v. Sarony, 111 U. S. 53 {see Burrow-Giles Litho. Co. r. Sarony )
Liverpool Insurance Co. i". Massachusetts (insurance business is not commerce),

10 Wall. (U.S.) 566 583,853

Liverpool Insurance Co v. Morse (removal of causes from State to federal

courts), 20 Wall (U.S.) 445 959

Loan Association v Topeka (taxation — power of States), 20 WalL (U.S.) 655 990

Logan V. Courtown (construction — statute), 20 L.J. Ch. 347 ... ... ... 364

London and N.W.R Co. v. Evershed, 3 Q.B.D. 134 (see Evershed v. London

andN.W.R. Co.) i

London Corp. c. Att.-(]len. (Crown— when bound), 1 H.L. Cas. 439 ... ... 321

Lopez r. Burslem (parliament — foreigners), 4 Moo. P.C. 300 ... ... ... 355

Lord r. Steamship Co. (commercial marine — internal commerce), 102 U.S. 541 518, 855

Lotlawanna, The (lien on vessels — State and federal LawK 21 Wall. (U.S.) 588 540, 874

Loughborough v. Blake (operation of federal laws), 5 Wheat. (U.S.) 317 551, 658, 941

Louisiana r. Jumel (jurisdiction — suits against public officers), 107 U.S. 711 775

V. Texas (controversies between States), 176 U.S. 1 ... ... ... 775

Louisville, &c , R. Co. v. Behlmer (discrimination — competition), 175 U.S. 648 912
r. Letson (jurisdiction— corporation an inhabitant), 2

How. (U.S.) 497 777

Low r Routledge (see Routledge v. Low)

Lubbock r. Potts (colony — plantation). 7 Ea.st 449 36

L' Union St. Jacques de Montreal i'. Belisle (bankruptcy laws — provincial ^nd

federal powers), L.R. 6 P.C 31 588,589,590,693

Luther v. Borden (judicial power — political question), 7 How. (U.S.) 1

565, 722, 792, 927, 964
Lyall V. Jardine (Privy Council — special leave to appeal), 7 Moo. P.C.N S.

116; LR. 3 PC. .318 761

Lyon t7. Morris (appeal — " final and conclusive"), 19 Q.B.D. 139 ... 746
McAllister, A'e (State tax on imports — original package), 51 Fed. Rep. (U.S.)

282 846

McCall v. California (inter-state commerce — State license), 136 U.S. 104 ... 847, 857
McClanaghan r. St. Ann's M.B Soc. (voluntary liquidation not insolvency),

24Lower Can. Jur. 162 ; 2 Cart Wright 237 ' 589

McCormick v. Sullivant (Inferior Courts), 10 Wheat. (U S.) 192 726

McCready v. Virginia (fisheries — beds of tide waters), 94 U S. 391 961, 970

McCuUoch V. Maryland (construction of Constitution— federal power to

establish national bank), 4 Wheat. (U.S.) 316

286, 551, 552, 553, 554, 555, 577, 652, 875, 949

xxviii. TABLE OF CASES.

PAGE.

McCullough V. Brown (South Carolina dispensary laws), 41 South Carolina 220 947

McElmoyle v. Cohen (inter-state enforcement of judgments), 13 Pet. (U.S. ) 312 963^

McGregor v. Cone (State tax on imports— original package), TSN.W. Rep. 1041 846

Machine Co. v. Gage (commerce — State tax on peddlers), 100 U.S, 675 ... 849

Mackenzie, Exp. (mandamus to officer of Crown), 6 S.C.R. (N.S. W.), 306 ... 782
Macleod v. Att.-Gen. of New South Wales (extra-territorial jurisdiction)

(1891), App. Cas 455 355

McLeod V. McGuirk (Federal insolvency laws), 15 N. Bruns. Rep. (2 Pugs.) 248 689
V. Wright (Federal insolvency laws), 17 N. Bruns. Rep. (1 Pugs, and

Burb.)68 589-

McNab w. Robertson (waters of rivers — percolating water) (1897), App. Cas. 129 893

MeNiel, £"3; paWe (pilots— State regulations), 13 Wall. (U.S.) 236 641

McNutt V. Bland (jurisdiction — citizens of different States), 2 How. (U.S.) 9 777

Magner r. People (commerce — game laws), 97 Illinois 33... ... ... ... 854

Maine v. Grand Trunk R. Co. (commerce — State tax on receipts), 142 U.S. 217 849

Mallinson v. Mallinson (custody of children), 35 L J. Mat. 84 ... ... ... 612

Mann. /?e (bankruptcy), 13 V.L.R 590 592

Mansfield, &c., R. Co. v. Swan (federal jurisdiction — consent of parties), 111

U.S. 379 785

Mansion House Assoc, v. London and S. W.R. Co. (home and foreign merchan-
dise—undue preference) (1895), 1 Q.B. 927 910,922

Marbury v. Madison (judicial power to declare laws invalid — mandamus to

federal officers), 1 Cranch (U.S.) 137 756,778-9,781,791

Maritime Bank of Canada f. New Brunswick Receiver-General (Crown — pre-
rogative in Dominion and in Provinces) (1892), App. Cas. 437 . ... 798, 931

Marks, Exp. (treaty— interpretation of), 15 N.S. W. L.R. 179; 10 W.N. 224 770

Marois, i?e (prerogative of appeal). 15 Moo. P. C. 189 ... ... ... ... 747

Marriott v. London and N. W.R. Co. (railway omnibus— undue preference), 26

L J. C.P. 154 907

Marshall r. Murgatroyd (ship on high seas), L.R. 6 Q.B. 31 357

Martin v. Hunter's Lessee (construction— judicial power), 1 Wheat. U.S. 304

286, 511, 575, 651, 723, 765, 802"

v.Mott (military power), 12 Wheat. (U.S.) 19 565

Marye v. Baltimore and Ohio R. Co. (inter-state commerce — State tax on

property), 127 U.S. 117 849

Mason v. Armitage (preamble), 13 Ves. 25 285

Matheson Brothers, Limited, Be (winding-up — foreign company), 27 Ch. D.

225 ... 605

Maxwell V. Dow (trial by jury), 176 U.S. £81 810

Maynard v. Hill (territories— government— divorce laws), 125 U.S. 190 ... 972

Mayor, The, v. Cooper (federal jurisdiction), 6 Wall. (U.S.) 247 ... ... 802

Medway Navig. Co. v. Romney (riparian rights— reasonable use), 9 C.B.N.S.

575 892

Memphis, &c., R. Co. v. Alabama (jurisdiction — citizenship of corporation),

107 U.S. 581 ... 777

Mercer's Case (resignation of members), CI. and Hail (U.S.) 44 437

Merchants' Bank of Canada v. Smith (commerce— banking), 8 Ont. App. 15 ;

8 S.C.R. (Can.) 512 ... 578

Merchants' Bank of Halifax v. Gillespie (winding-up foreign corporations),

10 S.C.R. (Canada) 312 349,591,592,606

Merchants' National Bank v. United States, 101 U.S. 1 (see National Bank v.

Unite<l States)

Merrill r. Sherburne (legislative power), 1 New Hamp. 199 ; 8 Amer. Dec. 52 721
Mersey Docks v. Cameron (Crown property exempt from taxation), 11 H.L.

Cas. 443 321

Metcalfr. Watertown (original jurisdiction), 128 iil.S. 586 ... ... ... 785

Metropijlitan R.R. Co. v. District of Columbia (federal territory— government)

Middlesex (Sheriff), Case of (parliamentary privilege— contempt), 11 A. andE.

659

.... 502

Mirlland Ry. Co. v. Ambergate, &c., Ry. Co. (interpretation clause), 10 Hare

359 ... ... ... ... ... ._ _ 3gg

Millar r. Taylor (copyright), 4 Burr. 2.303 ... ... ... .'. ... ... 593

Miller I'. Mayor of New York (commerce -navigation-obstruction), 109

x,u ^ ^^^ ^■■\ 516,517,531,640,884

Miller r. Race (bank note), 1 Burr. 452 575

Wills r. Durycc (proof of judicial record), 7 Cranch (U.S.) 481 ". ... 963

TABLE OF CASES.

Milnor t;. New Jersey R. Co. (State canals, highways, bridges), cited Baker,

Annot. Const. 25 ... ' 542

Miner v. Gilraour (riparian rights — reasonable use), 12 Moo. P.C. 131 892

Minnesota v. Barber (police power — inspection of animals before slaughter),

136 U.S. 313 536-7,848,857,944

Minor r. Happersett (citizen), 21 WalL (U.S.) 162 ^.. 776

Mississippi r. Johnson (judicial power — political question), 4 Wall. (U.S.) 475 723

Mitchell I' County Commissioners (federal notes exempt from State taxation),

91 US. 206 ... ... 559

Mitchell I". Harmony (military power — wrong committed in foreign country —

jurisdiction), 13' How. (U.S.) 115 642

Mobile V. Kimball (commerce — navigable streams — State tolls), 102 U.S. 691

518, 532, 540, 541, 849, 852, 885
Modee Kaikhooscrow Hormusjee v. Cooverbhaee (prerogative of appeal),

6 Moo Ind. A pp. 448 747

^lonongahela Na\ig. Co. v. United States (na\'igable streams — federal power),

148 U.S. 312 8.^2. 88.3, 885

3/o7i^e//o, The (navigable waters), 11 Wall. (U.S.) 411 540,882

JLToJt^cWo, The (navigable waters), 20 Wall. (U.S.) 4:i0 882,883

Montreal ^Mayor) v. Brown (creation of right of appeal), 2 App. Ca. 168 ... 746

Montreal v. Ecclesiastiques de St. Sulpice (Privy Council — special leave to

appeal), 14 App. Ca. 660 .. ... -- ... ... 753

Moore v. AJmerican Transportation Co. (internal commerce), 24 How. (US.) 1 855

Moran v. New Orleans (inter-state commerce — State licenses), 112 U.S. 69 ..'. 847

Morgan v. Parham (State tax on vessels), 16 WalL (U.S.) 471 ... ... ... 858

[Morgan's Steamship Co. v. Louisiana Board of Health (quarantine — State

fees), 118 U.S. 455 567,850,857

Mormon Church v. United States, 136 U.S. 1 {see Roraney v. United States)

Morrill v. Wisconsin (State tax on peddlers), cited Baker, Annot. Const. 28 ... 857

Morrison v. Springer (federal suffrage — State regulation), 15 Iowa Reps. (U.S.)

345 468

MostjTi V. Fabrigas (Colonial Governor— liability for wrongs), 1 Cowp. 161 ... 391

Munn V. Illinois (storage of grain — State regulation), 94 U.S. 113 533, 852, 857, 876

Murphv v. Ram.sev (fe<leral territories — government), 114 U.S. 15 ... ... 973

1 r. Ryan (fishery), Ir. Reps. 2 C.L. 143 568

Musgrave v. Pulido (Colonial Governor— authoritj-). 5 App. Cas. 102 ... ... 391

Musgrove r.* Chung Toj- (we Chung To\' v. Musgrove)

Myers v. Baltimore Commissioners (State tax on imported property), 35 Atl.

Rep. 144 848

Nash%ille, &c , R. Co. v. Alabama (commerce— license fees for railroad

employees). 128 U.S. 96 850,857

Nathan r. Louisiana (State tax on money — brokers — valid), 8 How. (U.S.) 73

516,517,856
National Bank v. Kentucky (federal securities exempt from State taxation ;

(State tax on shares in national banks), 9 Wall. (U.S.) 353 ... ... ... 555, 949

National Bank r. United States (federal power to tax bank established by

State laws), 101 U.S. 1 555

National Bank v. Yankton County (federal territories — government), 101 U.S.

129 972, 973

National Starch, &c. . Co r. Munn's Maizena Co. (treatj'— interpretation of),

13N.S.VV.L.R Eq 101 770

Neal 1-. Delaware (federal power to prevent electoral discriminations), 103

U.S. 370 468,623

Neilson v. Garza (inspection laws), 2 Woods (U.S ) 287 ... ... ... 944

Newby r. Van Oppen (foreign corporation doing business in British posses-
sion), L.R. 7 Q.B. 293 605

New Hampshire v. Louisiana (jurisdiction — controversies between States), 108

U.S. 76 774

Newland r. Marsh (legislative power), 19 Illinois 383 ... ... ... ... 721

New Orleans f. De Armas (treaty— "arising under"), 9 Pet. (U.S.) 224 ... 770

V. Winter (jurisdiction — resident of territory), 1 Wheat. (U.S.) 91 777

Waterworks Co. r. Tammany Waterworks Co. (police power —

private property taken for public use), 14 Fed. Rep. (U.S.) 194 642

Newport, &c.. Bridge Co. r. United States, 105 US. 470 {see Bridge Co. r.

United States)
Newry r. Great Northern R. Co. <group rates — imdue preference), 7 Ry. and

Can. Traf. Cas. 184 908

TABLE OF CASES.

New York (and see People of New York)

New York v. Louisiana (jurisdiction — controversies between States), 108 U.S.

76 774,775

New York v. Miln (commerce— reports — ship mastei-s), 11 Pet. (U.S.) 102

526-7, 529, 657
New York Board of Trade v. Pennsylvania R. Co. (federal power to regulate

rates of carriage), .*] Inter-State Com. Rep. 417 ... ... ... ... 521

Nicholson v. Great Western R. Co. (preference not necessarily unreasonable),

' 28L.J.C.P 89 907,914

Norfolk and Western R. Co. v. Pennsylvania (inter-state commerce — State

tax on railway company), 136 U.S. 114.. ... ... ... ... ... 847,857

North Lonsdale Iron Co. v. Fumess R Co. (group rates — undue preference),

60L.J.Q.B. 419 90S

Norton v. Shelby County (laws in excess of legislative power are void), 118

U.S. 425 346, 939

Norwich Railroad Co. v. Johnson, 15 Wall. (U.S.) 195 (see Railroad Co. v.

Johnson)

Nuth v. Tamplin (construction— statute), 8 Q.B.D. 247 364

Ogden r. Saunders (bankruptcy — State laws), 12 Wheat, (U.S. ) 213 587

Olcott V. Supervisors (railway — eminent domain), 16 Wall. (U.S.) 678 ... 641

Oriental Bank Corporation, Re (Crown— priority), 28 Ch. D. 643 322

Ormerod v. Todmorden Joint Stock Mill Co. (riparian rights — reasonable use),

11 Q.B.D. 155 892

Osborn v. Bank of the United States (State tax on branch of federal bank). 9

Wheat. (U.S.) 738 552, 602, 772, 773, 875, 949

Osborne v. Mobile (concurrent legislative power of States), 16 Wall. (U.S.) 479 856

Otto 1?. Linford (patent), 46 L.T. 35 597

Ouachita Packet Co. ^^ Aiken (wharfage rates), 121 U.S. 444 .. 532

Owen, Exp. (provincial tax on federal officer), 20 N. Bruns. Rep. (4 Pugs.

andBurb.)487 553

Owings V. Norwood's Lessee (treaty — "arising under"), 5 Cranch (U.S.) 344 770

Ox lade V. Eastern Counties R. Co. (special rate — undue preference), 26

L.J.C.P. 129 907

Pace r. Burgess (commerce — State stamp fee), 92 U.S. 372 519,849

Pacific Mail Steamship Co. v. Joliffe, 2 Wall. (U.S.) 450 («ee Steamship Co.

V. JoliflFe)
Pacific Railroad Co. v. Peniston (State tax on corporation), 18 Wall. (U.S.) 5

552, 554, 655
Packet Co. r. Keokuk (wharfage rates— State control), 95 U.S. 80 ... 536, 796, 850
Palmer r. Cuyahoga Co. (navigable streams — obstructions — improvement),

3McL. (U.S.)226 541

Palmer v. London and S.W.R. Co. (undue preference— question of fact),

L.R. 1 C.P 588 ... 745,909,915

Panter r. Attorney-General (commencement of Act), 6 Bro. Cas. Pari. 486 ... 331

Parker I'. Overman (tax bill— machinery clauses), 18 How. (U.S.) 137 ... 66»

Parsons v. Chicago and N.W.R. Co. (local and through rates- undue

preference), l(i7 U.S. 447 .. 912

Passenger Cases (State tax on alien passengers), 7 How. (U.S.) 283

516, 518, 520, 528-9. 855, 877
Patapsco Guano Co. v. North Carolina Board of Agriculture, 171 U.S. 345 ... 944

Patterson r. Gaslight Coke Co. (patent), 2 Ch I). 812 597

t'- Kentucky (police powers— explosives), 97 U.S. 501 850,851

Paul V. Virginia (insurance is not commerce— State license fee), 8 Wall.

(U.S.) 1H8 ... 583,849,961

Pawlet (Town of) v. Clark (jurisdiction -land claimed under grants of

different States), 9 Cranch (U.S.) 292 801

Peacock w. Bell (inferior court.s— jurisdiction), 1 Saund. 73 726

Pearce V. Scotchcr (fishery), 9 Q.B.I). 162 569

Peete v. Morgan (State tax on foreign vessel— quarantine), i9 Wall. (U.S.)

581 85»

Peik V. Chicago and N.W.R. Co, (inter-state railroad— minimum rate), 94

„ U.S. H}4 856,857

Peirce v. New Hampshire. 5 How. (U.S.) .)04 (.see License Ca.ses)

Pembina Mining Co. v. Pennsylvania (commerce -State license fee on foreign

corporation), 125 U.S. 181 849,856

Ptnniman's Case (statute unconstitutional in part), 103 U.S. 714 ... ... 796-

Pennoyer w, Neff (service of process), 95 U,S. 714 96:i

TABLE OF CASES.

PAGE.

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — bridged,

13 How. (U.S.) 518 526,530-1,032,540,886

Pennsylvania v. Wheeling Bridge Co. (commerce — navigable river — federal

power), 18 How. (U. 8.) ■421 ... 517,531,852,878

Pensacola Tel. Co. v. Western Union Tel. Co. (electric telegraph an agency

of commerce), 96 U.S. 1 518,534,541,560

People V. Compagnie Generale Transatlantique (inspection laws— State tax on

foreign passengers), 107 U.S. 59 .. ... ... 847, 855, 944

People r. Edye (inspection laws — purpose), 11 Daley (U.S ) 132 944

People f. Hawkins (commerce — labelling convict-made imports\ 31 N.Y.

Suppl. 115 .. ... ... ... ... ... ... ... ... ... 851

People V. Raymond (discriminatory legislation against Chinese), 34 Calif.

'Rep. (U.S.) 492 628

People of New York v. Commrs. of Taxes, 2 Wall. (U.S.) 200 (see Bank Tax

Case)
Permoli v. First Miinicipalitv (religious liberty dependent on State laws),

3 How. (U.S.) 589 .. ". 953,970

Pervear v. Commonwealth (original package), 5 Wall. (U.S ) 475 ... ... 555

Philadelphia Steamship Co. v. Pennsylvania ^commerce — tranportation — Stat«

tax on receipts), 122 U.S. 3C6 .. ... 517,849,856

Philip V. Philip (access to children), 41 L.J. Prob. 89 612

Philipps I'. Rees (construction - statute), 24 Q.B.D. 17 365

Phillips V. Eyre (Crown— colonial legislature^privileges), L.R. 6 Q.B. 1 309, 310, 355
Phipps w. London and N.W.R. Co. (competitive rates - undue preference —

question of fact) (1892), 2 Q.B. 229 745,906,907,908-10,915,916,918

Pickard i'. Pullman Car Co. (tax on inter-state commerce), 117 L'.S. 34 ... 846, 856

Pisani r. Lawson (alien— libel right to sue), 6 Bing. N.C. 90 600

Pittsburg Coal Co. v. Bates iState tax on sales), 156 U.S. 577 848

Plumley v. Massachusetts (police power— sale of oleomargarine), 155 U.S. 461 851

Polgla.ss r. Oliver (legal tender), 2 Crompt. and Jar 15 . ... 575

Pollard V. Hagan (federal territory— government), 3 How. (U.S.) 212 658, 970

Pollock V. Farmers' Loan and Trust Co. (direct taxes requiring apportionment),

157 U.S. 429 ; and 158 U.S. 601 549,556

Pound r. Turck (dam across navigable stream), 95 US. 459 ... 525, 532, 858, 885

Powell r. Pennsylvania (police power— sale of oleomargarine), 127 U.S. 678 ... 850

Presser o. Illinois (right to bear arms), 116 U S. 252 564, 796

Preston v. Finley (State tax to exclude obscene paper), 72 Fed. Rep. (U.S.) 850 518, 851
Prigg V. Pennsylvania (Constitution — construction implied powers), 16 Pet.

(U.S.) 539 652, 796

Prince v. Gagnon (Privy Council - special leave to appeal), 8 App. Ca. 103 ... 753

Provident Institution i\ Massachusetts (federal securities exempt from State

taxation), 6 Wall. (U.S.) 611 559,949

Provincial Fisheries, /le ( regulation of fisheries), 26 S.C.R. (Can.) 444 ... 569

Pullman's Palace Car Co. v. Pennsylvania (inter-state commerce — State tax on

railroad stock), 141 U.S. 18 849

Pumpelly v. Green Bay Co. (eminent domain — compensation), 13 Wall. (U.S.)

166 641,642

Queen, The (see Regina)

Quirt V. The Queen (winding-up ; private bill legislation), 19 S.C.R (Can.) 510 590

Rahrer, i?e (Federal and State laws— harbour dues), 140 U.S. 545 853,946

Railroad Co. v. Baldwin (federal power to authorize railway construction), 103

U.S 426 ... ... 972

Railroad Co. v. Fuller (posting railway rates— State law), 17 Wall. (U.S.) 560 856

Railroad Co v. Husen (police power— State law restricting importation of

cattle), 95 U.S. 465' 518,533,847,857

Railroad Co. 1-. Johnson (legal tender), 15 Wall (U.S.) 195 575

Raih-oad Co. r. Peniston, 18 Wall. (US.) 5 (nee Pacific Railroad Co. v.

Peniston)
Railroad Co. r. Richmond (commerce — bridges across navigable rivers), 19

WaU. (U.S.)584 541,856

Railroad Co. r. Tennessee (jurisdiction— suit against State), 101 U.S. 337 ... 774

Railroad Co. (Morgan L. and T.) r. Board of Health (inspection laws), 36

Louisiana Annu. 666 ... ... ... ... ... ... ... ... 944

Railroad Companies v. Schutte (statute unconstitutional in part), 103 U.S. 118 796

Railway Co. v. Ramsey (federal jurisdiction -admission), 22 Wall. (U.S.) 322 785

Ralston I'. Smith (patent), 11 H.L. Cas. 223 597

Ransome v. Eastern Counties R. Co. (competitive rates — undue preference),

26L.J.C.P. 91 907

TABLE OF CASES.

Ransome v. Eastern Counties R. Co. (group rates -undue preference), 27

L.J.C.P. 166 907

Ransome r. Eastern Counties R. Co. (trainload— undue preference), 29

L.J.C.P. 329 908

Ratclifff. Ratcliff (divorce-domicile), 29 L.J. Mat. 171 611

Ray V. McMackin (inter-colonial extradition), 1 V.L.R. (L.) 274 ... 355, 617, 630

Reade w. Conquest (copyright). 30 L.J.C.P. 209 593

Reading Railroad Co. v. Pennsylvania (see State Freight Tax Co. )

Reed V. Cosden (election returns), Cl. and Hall (U.S.) 353 438,440,475

Regina v. Amer (justice in territories), 42 Upper Canada Q.B. 391 973, 983

V. Anderson (British ship— offences on board), L.R. 1 C.C. 161 ... 358

V. Armstrong (British ship — offences on board), 13 Cox, C.C. 185 ... 358

V. Bay ley (Crown— when bound), 4 Ir. Eq. R. 142 321

V. Bortrand (prerogative of appeal), L.R. 1 P.C. 520 ... ... ... 750, 752

V. Boiler Explos. Act Commr-s. (interpretation clause) (1891), 1 Q.B.

703 365

Regina v. Bowell (Provincial tax on federal officer), 4 Brit. Columbia Reps.

498 553

Regina «. Brierly (extra-territorial laws), 14 Ont. Reps. 525 ... ... ... 602

V. Burah (plenary legislative power), 3 App. Cas. 889 .. 509

V. Call, Ex parte Murphy (extra-territorial jurisdiction), 7 V.L.R. (L.)

113 354,614,618

Regina v. Carr (British ship — offences on board), 10 Q.B. D. 76 ... 358

V. Chapman (fraud upon public officer), 18 L. J.M.C. 152 809

V. College of Physicians (meaning of "exclusive"), 44 Upper Can. Q.B.

564 350, 656

Regina z'. Cruise (Crown — priority), 2 Ir. Ch. R. 65 ... ... ... ... 322

1). Dudley (British ship — offences on board), 14 Q.B, D. 273 358

V. Fredericton (City), 19 N. Bruns. (3 Pugs, and Burb.) 139 (see

Fredericton City v. the Queen)

Regina t'. Hall (misdemeanour) (1891), 1 Q.B. 747 470

V. Hertford College (construction of statutes — extrinsic evidence), 3

Q.B.D. 693 796

Regina u, Keyn (Territorial waters). 2 Exch. D. 63 ... 355, 359

V. King's County Justices (Liquor Licenses — provincial control), 15 N.

Bruns. (2 Pugs.). 535 542,544

Regina w. Lancaster (bribery of public officer), 16 Cox 737 ... ... ... 809

V. Leslie (British ship — oflences on board), 8 Cox, C.C, 269 358

V. Local Government Board (prohibition to public bodies), 10 Q.B.D. 309 783

V. London (Bishop), (Construction— Statute), 24 Q.B.D. 213 365

V. Lopez (British ship - foreigner on board), 27 L.J. M.C. 48 .. ... 358

V. Lords Commissioners of Treasury (mandamus to officers of Crown),

L.R. 7Q.B. 387 781

Regina V. Mallow Union (Title— Statute), 12 Ir. C. L.R. 35 365

i>. Most 'Construction— Statute) 7 Q.B.D. 244 365

V. Pearce (Interiiretation clause), 5 Q.B.D. 386 366

V. Powell (no mandamus to sovereign), 1 Q.B. 352 .. ... ... 781

w. Robertson (Fisheries), 6 8. C.R. (Can.) 52 569

V. Sattler (British ship— foreigner on board), 27 L.J. M.C. 48 358

r. Slator (indictment— information), 8 Q.B.D. 267 808

V. Taylor (exclusive legislative power), .36 Upper Can. Q.B. 183 ... 349

V. Walker (misdemeanour — common law), L.R. 10 Q.B. .355 470

V. Wellington County, (Insolvency laws— provincial and federal —

conflict), 17 Ont. Reps. 615 591

Regina I'. Williams (liability of Crown for tort), 9 App Ca. 418 805

V. VVim»)ledon Local Board (Construction— Statute), 8 Q.B.D. 459 ... 365

V. Wing Chong (Chinese License Case), 1 Brit. Col. Rep., Part II., p.

150 ; Wheeler, C.C. 122 628

Renaud, Exp. (Imperial legislative control over colonies), 14 N. Bruns. 273 ;

1 Cart. 445 349

Rex V. Cowle (mandamus- jurisdiction of Court of King's Bench), 2 Burr. 834 781

V. Fuller (procuring base coin). Russ. and Ry. 308 809

V. Johnson (Preamble), 29 St. Tr. .303 285

V. North Curry Inhabitants (Residence defined), 4 Barn, and Cres, 959 ... 960

V. Robinson (Preamble), 2 East P.C. 1113 285

V. Sainsbury (breach of sUtute— indictable offence), 4 T.R. 451 ... ... 810

V. Button (possession of coining tools), 1 East P.C. 172 809

TABLE OF CASES. xxxiii.

Rex p. Wilkes (Judicial discretion), 4 Burr. 2539 759

«. Williams (Title— Statute), 1 W. BL 93 ... ... - ... 281

Re^-nolds r. Stockton (State judgment — when enforced in other States), 140

* U.S. 254 963

Reynolds v. United Sutes (Territorial Court - polygamy), 98 U.S. 145 ... 953
Rhode Island v. Massachusetts (construction— exceptions to a grant— juris-
diction), 12 Pet. (U.S.) 6.57 •; 578,775,796

Rhodes r. Iowa (State liquor law— The Wilaon Act — operation), 170 U.S. 412 947

Rhymney R. Co. r. Rhymney Iron Co. (undue preference), 25 Q.B.D. 146 ... 921
Richards' Case (election returns — certified — qualification), CI. and Hall (U.S.)

95 438,440,475

Richards r. Butcher (trademark) (1891), 2 Ch. 522 598

V. McBride (construction of statutes— extrinsic evidence), 8 Q.B.D.

119 ._. ^ 796

Riel r. The Queen (justice in territories), 10 App. Cas. 675 350, 514, 973

Ringfret r. Pope (quarantine). 12 Quebec L. Reps. 303 ... ... ... ... 567

Robb V. Connolly (extradition -" officer of the United States"), 111 U.S. 624 620, 784
Robbins v Shelbv Taxing District (Stat« tax on commercisil travellers —

invalid). 120 U.S. 489 517,519,847

Roberts r. Reilly lextradition — inter-state — conditions), 116 U.S. 80 620

c. United States (mandamus to public officer), 176 U.S. 221 ... ... 782

Robertson, Exp. : Re Oovemor-General of N.S.W. (removal of judges),

11 Moo. P.C. 288 730

Robertson r. Pickrell (faith and credit), 109 U.S. 608 963

Robinson r. Barton-Eccles Local Board (interpretation clause), 8 App. Cas.

798 366

Robinson r, Campbell (common law — federal jurisdiction), 3 Wheat. (U.S.)

212 788

Romney ». United States (federal territories — government), 136 U.S. 1 ... 972, 973

Rooke's Case (judicial discretion), 5 Coke Rep. 100a ... ... ... 759

Rothes V Kirkcaldj' Waterworks (construction — statute), 7 App. Cas. 694 . . 365

Rouanet, Exp. (treaty— interpretation of), 15 N.S. W.L.R. 269 ; 11 W.N. 55 770
Routledge r. Low (copyright — colonies — aliens), L.R. 1 Ch. 42 ; 3 H. L. 100

348, 594, 595, 6U0, 602, 958
Ruggles 1-. Manistee River Improvement Co. (commerce— improvement of

river), 123 U.S. 297 532

Russell V. The Queen (federal control over liquor traffic), 7 App. Cas. 829 ... 512, 545

Ryall V. Kenealy (influx of criminals), 6 W.W. and aB. (Vic.) 193 630

Ryan r. Carter (inter-state privileges and immunities), 93 U.S. 78 ... ... 960

Ryder f. Ryder (custody of children), 30 L. J. Mat. 44 612

St. Louis r. McCo}- (police powers— quarantine), 18 Missouri 238 854

r. Telegraph Co. (reasonableness of wharfage rates), 1.39 U.S. 463 ... 854

p. Wiggins Ferrj' Co. (vessels — when not taxable by a State), 11

Wall. (U.S. 423) 847, 854

Salkeld f. Johnson (statute -title), 2 Exch. 256 281,284

Sandhurst (Lady) r. Beresford Hope («e Beresford Hope v. Sandhurst)
Sands r. Manistee Improvement Co (river whoUv within a State), improve-
ment), 123 U.S. 288 ' 532. .540. 850, 885

Sa\-ings and Loan Assoc, v. Topeka, 20 Wall. (U.S.) 655 [see Loan Association

V. Topeka)

Scholey r. Rew (federal succession tax), 23 Wall. (U.S.) 331 556

Schollenberger r. Pennsj'lvania (State tax on imports — original package —

oleomargarine), 171 U.S. 1 ... 846,851

Scott r. Donald, 165 U.S. .58 [see Donald c. Scott)

Searl v. Lake County School District (just compensation), 133 U.S. 553 641

Severn v. The Queen (brewers' licenses^provincial control), 2 S.C.R. (Can.) 70 544, 547

Shaw r. Gould (divorce— legitimacv), 37 L J. Ch 433 611

F. Ruddin (title— statute), 9* Ir. C.L.R. 214 281

Sherlock r. Ailing (marine torts), 93 U.S. 99 542

Shively r. Bowlby (federal control of na\ngable waters), 152 U.S. 1 883

Siebold. Eocp. (imprisonment under unconstitutional law — habeas corpus), 100

U S. .371 470, 471, 472, 965

Simpson r. Fogo (civil process - service), 32 L.J. Ch. 349 616

Sinclairs Divorce Bill (divorce— domicile) (1897), App.. Cas 469 611

Sinking Fund Cases, 99 U.S. 700 {see Doggett r. Railroad Co.)

Sinnot r. Davenport (commercial marine — federal control). 22 How. (U.S.) 227 542

Slaughter House Cases (privileges and immunities of federal citizenship), 16

WaU. (U.S.)36 850,961

xxxiv. TABLE OF CASES.

Slingsby's Case (suspension of judges), 3 Swanst. 178 733

Smiles v. Belford (copyright in colonies), 1 Ont. App. Reps. 436 ;i49, 5fl5

Smith, Ji-xw. (federal jurisdiction). 94 U.S. 455 784

V. Goldie (patent— tribunal), 9 S.C.R. (Can ) 46 598

V. Merchants' Bank, 8 Ont. App. Reps, 15 (see Merchants' Bank of

Canada v. Smith)

Smyth V. Ames (State regulation of internal commerce), 169 U.S. 466 520, 874, 921
Society for Savings v. Coite <State tax on federal corporation), 6 Wall (U.S.)

594 - 949

Soon Hing v. Crowley (regulation of Chinese labour), 113 U.S. 703 623, 853

Sottomayoru. De Barros (marriage — domicile), 3 Prob. D. 1 ... ... 609

South Carolina v. Georgia (federal control over navigable waters), 93 U.S. 4

516, 540, 878, 883

Southey r. Sherwood (copyright), 2 Mer. 435 593

Spaulding v. Mead (qualification of members), CI. and Hall (U.S.) 157 438, 440, 475
Speaker of the Leg. Ass. (Vic.) v. Glass (parliamentary privilege), L.R. 3 P.C.

560 506

Spraigue v. Thompson (pilotage compulsory — State regulation), 118 U.S. 90 541, 796

Spratt V. Spratt (custody of children), 1 Sw and Tr. 215 ... ... ... 612

Springville u. Thomas (trial by jury), 166 U.S. 707 ... ... ... ... 810

State V. Engle (Goods in transit not subject to State taxation), 34 New Jersey

L. 435 519

State f. Illinois Central R. Co. (navigable waters — obstruction), 146 U.S. 387 885

V. Rhodes (Liquor law — State control — the Wilson Act) 90 Iowa (U.S.)

496 946

State V. Steamship Constitution (Police power— exclusion of immigrants), 42

Calif. 578 ; 10 Amer. Rep. 303 853

State Freight Tax Case (State tax on freight passing through- invalid) 15

Wall. (U.S.) 232 ... 516,532,796,846,848,855

State Tax on Railway Gross Receipts Case (Inter-state commerce) 15 Wall.

(U.S.) 284 ■ 542,849,855

State Tonnage Tax Cases, 12 Wall. (U.S.) 204 858,944

Stead V. Course (Power to tax includes means to enforce) 4 Uranch^U.S.) 403 668
Steamship Co. v. Joliffe (Pilots— State control subject to federal law -State

portdues), 2WalL (U.S.)450 541,853

Steamship Co u. Port Wardens (Pilotage -compulsory — State regulation), 6

Wall. (U.S.) 31 641,847,854

Steamship Co, v. Tugman (jurisdiction citizenship of corpoi-ation), 106 U.S.

118 ... 777

Stepney Election Petition, Be {see Isaacson v. Durant)

Stevenson v. The Queen (Customs duties coUeotioB - resolution of Assembly),

2W.W. anda'B. (L.)(Vic.)143 506,859

Stillman v. White Rock Manuf. Co. (boundary breams - riparian law), 3 Wood

and M. (U.S.) 5.38 889

Stockdale v. Hansard (Parliamentary privilege), 9 Ad. and El. 1 503

.Stockton V. Baltimore R, Co (federal control of navigable waters), 32 F«d.

Rep. (U.S.) 9 „ 883

Stoutenburgh v. Hennick (Federal territory— governm«it—Stat« tax on com-
mercial travellers), 129 U.S. 141 „ 658,847,941

Straudert). West Virginia (trial by jury), 100 U.S. 303 810

Strawbridge r. Curtiss (jurisdiction - c-itizens of different States^, 3 Cra»ch

(US.) 267 ... 777

SturgcB V. Crowninshield (Bankruptcy— State law— Uniform), 4 Wlieat. (U.8.)

122 427,557,587

Sturtevants v. Alton City (Post Offices— federal pow*!-), 3 McL. <U-S.) 393 ... 560

Supervisors v. Stanley (statute unconstitutional in part), 105 U.S. 305 ... 796

Sussex Peerage Case (Preamble - construction), 1 1 O. and Firm 85 ... 285, 364

Sutton V. Sutton (Preamble - Marginal note), 22 Ch. 1). 511 .. 285

Swan, .ffe (Judicial power— independence), 150 U.S. 637 382

Swanton t», (ioold (construction of statute), 9 Ir.C. L.R. 234 ... 365

Tai Singjp. Macguire (sovereignty of British Pari.), 1 Brit. Uol. (Irvng) 107... 350

Tarble s Case (Naval and Military power). 13 Wall. (U.S.) 397 564

Taylor, i?c (Judicial discretion), 4 Ch. D. 157 759

— V. Barton, 6 N.S.W. L.R. 1 ; 11 App. Ca. 1«7 t«ec Bartciii v. Taylor)

Telegraph Co. v. Texas (State tax on interstate commerce), 105 U.S. 460

. r 541,846,848,855

Temple, Axp. (Witness— privilege), 2 Ves. and B. *ll 321

TABLE OF CASES.

PAGE.

Tennant f . Union Bank of Cana<la (Banking— warehouse receipts) (1894) App.

Cas 31 .••• 578,597

Tennessee r. Davis (jurisdiction— civil, criminal, »nd territorial — " arising

under the laws''), 100 U.S. 257 3^' "?I

Tennessee v. Pullman Southern Car Co. (State t^Ls on cars), 117 U.S. 51 ... 856

Texas v. White (once a State always a State), 7 Wall. U.S. 7tH> ... 293, 370, ft29

Texas and Pacific R. Co. v. Inter-State Commerce Commission (wholesale rate

— undue preference — objects of Inter-State Commerce Act), 162 U.S. 197

745, 898, 900, 905, 911-2, 914, 915
Texas and Pacific R. Co. v. Inter-State Transportation Co. (na\igable watere —

obstruction), 155 U.S. 585 •■■ 884,886

Theberge v. Laudry (controverted provincial election law — prerogative of

appeal), 2 App." Cas. 102 497,498,747,761

Thompson r. Utah (trial by jury), 170 U S. 343 810

V. Whitman (State judgments— faith and credit), 18 Wall. (U.S.) 457 963

Thomson r. Union Pacific R R. Co. (State tax on railway employed by Federal

Government), 9 Wall. (U.S.) 579 552,554

Thormann v. Frame (judgment — faith and credit), 176 U.S. 350 ... .. 963

Thurlow t,-. Ma-ssachusetts (State control over liquor tratfic), 5 How. (U.S.) 586

(and «ee License Cases) ... ... ... ... ... ... 542

Tiernan r. Rinker (inter-state commerc-e— State licenses), 102 U.S. 123 847, 848, 856

Tomlinson ». Bullock (time in statute), 4 Q.B.D. 230 331

Toronto (City) r. Virgo (regulation and prohibition distinguished) (1896) App.

Cas. 88 548

Trade Mark Cases (statute uncoastitutional in part), 100 U.S. 582 796

Train r. Boston Disinfectant Co. (police powers — quarantine), 144 ^ass. 523 ;

.jQAmer. Rep. 113 ^ 854

Transportation Co. i\ Fitzhugh (admiralty jurisdiction), 1 Black (U.S.) 574 ... 800
V. Parkersburg (wharfage rates — State regulation), 107 U.S.

691 536,850,853

Transportation Co. r. Wheeling (State tax on vessels), 99 U.S. 273 ... ... 858

Trumbull's Case (Senators— qualification), 1 Cong. El. Cas. (U.S.) 618 440, 475

Tua {-. Carriere (bankruptcy — State la w^s), 117 U.S. 201 ... ... ... ... 587

Turner r. Maryland (inspection and branding — State stamp fee), 107 U.S. 38 .. 849, 944
Turney r. Marshall (qualification of members), 1 Cong. El. Cas. (U.S.) 167 ... 440, 475
Turpin c. Burgess (State stamp fee — export stamp on goods), 117 U.S. 504 539, 846, 849

Tj'ler, T^e (judicial power —independence), 149 U.S. 164 ... . 382

Union Bank v. Tuttle (insolvencv in one colon}' — effect in another), 15 V. L.R.

258 ' 592

Union Collierj' Co. of Brit. Columbia i;. Bryden (Chinese — in mines), (1899)

App. Ca. 580 603

Union Pacific R. Co. v. Peniston, 18 Wall. (U.S.) 5 («ce Pacific Railroad Co. r.

Peniston)
Union Steamship Co. of N.Z. v. Melbourne Harbour Trust (statute — headings),

9App. Ca. 365 281

United States v. Angell (Federal tax on employments), 11 Fed. Rep. (U.S.) 34 556

«'. Arjona (Coinage and currency— offences), 120 U.S. 479 ... 573

r. Bainbridge (Naval and military power), 1 Mason (U S.) 71 ... 564

V. Bellingham Bay Boom Co. (Navigation -rivers), 176 U.S. 211 883

ex rel. Boynton v. Blaine (mandamus to United States), 139

U.S 306 ... 782

United States v. Britton (federal jurisdiction — common law offences^, 108

U.S. 199 787

United States v. Coolidge (federal jurisdiction — common law offences), 1

Gallison (U.S.) 488 ; 1 Wheat. 415 786,787

United States v. Cornell (Offences in federal territory— federal jurisdiction),

2 Mason (US) 91 ... 660

United States r. Cruikshank (Implied powers — conspiring to prevent free

exercise of federal rights), 92 U S 542 652

United States r. Curtis (trial by jury), 4 Mason (U.S.) 2.32 808

e-r rel. Dunlap v. Black (mandamus to federal oflHcer), 128

U.S. 40 782

United States v. Eaton (federal jurisdiction— common law offences), 144

_ U.S. 677 787

United States o. Fisher (incidental and implied federal powers), 2 Craoch

(U.S.) 358 .. ... 652

United States v. Forty-three Gallons of Whisky (treaty— law of the land), 93

U.S. 1S8 ... ;.. ^ ... 769

TABLE OF cases;

PAGE.

United States v. Gale (federal suffrage — protection), 109 U.S. 65 470

V. Gay, 163 U.S. 427 {See United States v. Realty Co.)

V. ex rel. Goodrich v. Guthrie (mandamus to federal officer), 17

How. (U.S.)284 782

United States v. Great Falls Manufg. Co. (Private property taken for federal

purposes), 112 U.S. 645 642

United States v. Harris (Implied powers conspiracy to deprive citizens of

legal rights), 106 U.S. 629 796,961

United States v. Hartwell (" officer of the United States"), 6 Wall. (U.S.) 385 784
V. Hudson and Goodwin (jurisdiction over common law offences),

7Cranch(U.S.)32 786,787

United States t;. Jones (eminent domain), 109 U.S. 513 ... .. ... 640,641

V. Lee (jurisdiction — suits against federal officers), 106 U.S. 196 773

V. Marigold (Currency offences — implied federal powers), 9 How.

(US.) 560 573 574,652,796

United States r. Maurice (jurisdiction— suits by and against United States),

2 Brock (U.S.) 109 ... 773

United States v. Ortega (Minister —case " affecting), 11 Wheat. (U.S.) 468 ... 771

V. Rauscher (treaty— law of the land), 119 U.S. 407 769

r. Realty Co (Federal appropriating power), 163 U.S. 427 ... 666

ex rel. Redfield v. Windom (mandamus to federal officer), 137

U.S. 636 782

United States v. Reese (rights and immunities — coustruction), 92 U.S. 214 468, 472, 796

- V. Rhodes (naval and military power), 1 Abb. (U.S.) 28 ... 564

". Rio Grande Damandlrrig. Co. (river navigation — irrigation),

51 Pac. R. 674 880,890

United States v. Rio Grande Dam andlrrig. Co. (river navigation— irrigation),

174 U.S. 690 881,882,883,884,888,891,894

United States v. Russell (eminent domain- compensation), 13 Wall. (U S.) 623 642

V. Singer (federal excise tax), 15 Wall. (U.S.) Ill ^o'o

V. Tappan (taxes and imposts), 11 Wheat. (U.S.) 419 ... ... 550

V. Van Buskirk (federal excise tax), 15 Wall (U.S.) 123 ... 556

Williams (federal territory — judicial authoritj'), 4 Cranch,

C.C. (U.S.)393 ... - ()59

United States v. Wilson (bankruptcy— discharge by State law— efTect), 8

Wheat. (U.S.) 253 587

United States v. Worrall (federal jurisdiction— common law offences), 2 Dall.

(U.S.) 384 ' 785

Unity V. Barrage (statute unconstitutional in part), 103 U.S. 447 796

Uriah Tracey, Taft's Election Cases 3 437

Valin V. Langlois (disputed election — Privy Council — special leave to appeal)

5App. Las. 115 ... 497,752

Van Allen v. Assessors (delegation of power — State tax on shares in national

bank), 3 Wall. (U.S.) 573 949

Vance v. Vandercook Co. (State liquor laws— the Wilson Act), 170 U.S. 438... 947

Van Wyck i>. Knevals (railways in territories), 106 U.S 360 972

Veazie v. Moor (river wholly within a State— improvement), 14 How. (U.S ) 568 540

" ■ " • " .^ ^ . 5^3

282

... , 1 jurisdiction),

7V.L.R. (L.)248 355,360

Vidal 17. (Jirard's Executors (Christian religion recognized bv courts), 2 How.

(U.S.) 127 *'... ...^ ... ^ ... 951

Virginia, Exp (discriminating legislation— invalid), 100 U.S. 339 623

Virginia v. West Virginia (jurisdiction— disputed boundaries) 11 "Wall.

(U.S.) 39 ... *^ 775

Virginia Coupon Cases (statute unconstitutional in part), 114 U.S. 269 ... 796

Voiulit ». Wright (inspection laws— discrimination), 141 U.S. 62 944

Wabash, St Louis and Pacific R. Co. v. Illinois (State regulation of extra-
state railway rates— void), 118 U.S. 557 516, 520, 856, 857, 904

Waldeni'. Skinner (jurisdiction— citizens of different states), 101 U.S. 577 ... 777

Walker r. New Mexico and S.P.R. Co. (trial by jury), 165 U.S. 593 810

Wall's Case (alien— disability), 6 Moo. P C. 216 600

Wallace and Co. Exp. (customs duties collection— resolution of Assembly),

13N.S.W.L.R 1 •; 859

Walling V. Michigan (State licenses to sell imported liquor), 116 U.S. 446

519, 846, 847, 856

TABLE OF CASES.

PAGE.

Want r. Moss (injunction -jurisdiction), 12 N.S.W.L.R. Eq, 101 783

Ward V. Marj'land (inter-state privileges and immunities), 12 Wall. (U.S.) 418 960

Ware r. Hylton (treaty - enforced by legislation), 3 Dall. (US.) 199 .^36

Waring v. Clarke (admiralty jurisdiction), 5 How. (U.S.) 441 ... ... ... 800

Waterhouse v. Gilbert (appeal — " final and conclusive" ), 15 Q.B.D. 569 ... 746

Wayman r. Southard (judicial power), 10 Wheat. (U.S.) 1 ... ... ... 719

Welton V. Missouri (State peddler tax — when invalid), 91 U.S. 275

515, 518, 520, 532-3, 847, 856, 857
Western Union Tel. Co. ?■. Alabama State Board (telegraphic mes.'>agcs —

inter-state commerce), 132 U.S. 472 ... ... ... ... . . 516,518,541

Western Union Tel. Co. v. Massachusetts (intcr-state commerce — State tax

on property), 125 U.S. 5.30 849

Western Union Tel. Co. r. Pendleton (telegraphic messages— inter-state),

122 U.S. 347 515,541

Western Union Tel. Co. v. Taggart (inter-state commerce— State tax on

property), 163 U.S. 1 849

Western Union Tel. Co. v. Texas, 105 U.S. 460 {see Telegraph Co. v. Texas)

West Ham Overseers v. lies (preamble), 8 A pp. Cas. 386 ... .. ... 284

Westminster Bank, Be (House of Lortls may submit questions to judges),

2 CI. and Fin. 191 766

Weston V. Charleston City (State tax on federal stock — void), 2 Pet (U.S.)

449 559, 949

We\-mouth Corporation v. Nugent (Crown prerogatives), 34 L.J. M.C. 81 ... 321

Wheaton r. Peters (no federal common law), 8 Pet (U.S.) 591 ... .. ... 593, 785

Wheeling Bridge Case, 18 How. (U.S ) 421 {see Pennsylvania r. Wheeling

Bridge)
White's Bank r. Smith (regulation of ships — commerce), 7 Wall. (U.S.) 646

518, 540, 874

Whitney v. Robertson (treaty— law of the land), 124 US. 190 769

Wiggins Ferrv Co. r. E^ast St. Louis (ferries over navigable streams), 107

U.S. .365" ... 852,856

Willamette Iron Bridge Co. v. Hatch (river wholly within a State — State

and federal power), 125 U.S. 1 ... ... ... ... ... - ... 540,541

Willard r. Presbury (federal territory— improvements), 14 WalL (U.S.) 676... 659

V. Tayloe ("legal tender), 8 Wall. (U.S.) 557 575, 581

Williams »' Peyton (|X)wer to tax — means to enforce), 4 Wheat. (U.S.) 77 ... 668
Willson o. Blackbirfl Creek Marsh Co. (commerce — na^^gation — obstruction —

police power), 2 Pet. (U.S.) 245 ... 516, 525-6, 527, 531, 852, 885

Wilson r. Crossfield (fishery), 1 Times L.R. 601 569

Wilts and Berks Canal Co. i'. Swindon Waterworks Co. (riparian rights —

reasonable use), L. K 9 Ch. 451 892,894

Wind V. Her (State tax on imports -original package), 93 Iowa 316 ... ... 846

Windsor, Town of r. Commercial Bank of Windsor (Pro\incial tax on

Dominion notes), 3 R. and G. (Nova Scotia) 420 554

Winn V. Mossman (preamble), L R. 4 Exch. 292 ... ... ... ... 284

Winona and St. Peter Co v. Blake (railroads— State regulation), 94 U.S. 180 857

Wiscart y. Dauch^- (jurisdiction of federal courts), 3 Dall. (U.S.) 321 ... ... 738

Wisconsin v. Duluth (navigable rivers— federal authorit}' to improve), 96 U.S.

379 852,883

Wisconsin v. Pelican Ins. Co. (federal jurisdiction — suits bv States), 127 U.S.

265 ' ...518,775,777,778,963

Withers v. Buckle}- (navigable waters— shores and soil), 20 How. (U.S.) 84 .. 532, 970

Withipole's Case (indictment includes inquisition), Cro. Car. 134 808

Wong Yung Quy, Be (corpse not property), 6 Sawj'. (U.S.) 442 518
Woodrufi" V. Parham (imports and exports State tax on auction sales), 8

Wall. (U.S.) 123 ... 845,943

WooUey r. Ironstone Hill Lead Co. (appeal from State courts to Privy

Council), 1 V.L.R. Eq. 237 738

Worcester v. Georgia (national and fedei-al principles), 6 Pet. (U.S.) 515 ... 336

Works V Junction Railroad (bridges over navigable rivers), 5 McL. (U.S.) 425 541

Worms, Exp. (treaty— extradition), 221xiwer Can Jur. 109 ; 2Cartwright 315 770

Yarbrough, Ex parte (protection of federal voters), 110 U.S. 651 471

Yelverton r. Yelverton (divorc-e — domicile), 1 Sw. and Tr. 574 611

Yick Wo I'. Hopkins (discriminating legislation against particular races), 118

U.S 356 ... ... ... ... ... ... ... ... ... 622, 623

ZoUverein, The (British ship — laws), 1 Sw. Adm. 96 .. 355

^1^

By the QUEEN.

A PROCLAMATION.

YlC'TOKIA R.

XXTHFiKEAS by an Act of Parliament passed in the
^ Sixty-third and Sixty-fourth Years of Our Reign
intituled, *'An Act to constitute the Commonwealth of
Australia" it is enacted that it shall be lawful for the Queen,
with tiie advice of the Privy Council, to declare by
Proclamation, that, on and after a day therein appointed,
not being later than One Year after the passing of this Act,
the people <)f New South Wales, Victoria, South Australia,
Queensland, and Tasmania, and also, if Her Majesty is
satisfied that the people of Western Australia have agreed
thereto, ol Western Australia, shall be united in a Federal
ConimoHwealth under the name of the Commonwealth of
Australia.

And whereas We are satisfied that the |>eot»le of
Western Australia have agreed thereto accordingly.

We therefore, by and with the advice of Our Privy
Council, have thought fit to issue this Our Boyal Proclama-
tion, and We do hereby declare that on and after the First
day of January One thousand nine hundred and one, the
people of New South Wales, Victoria, South Australia,
Quee7island , Tasmania, and Western Australia shall be
united in a Federal Commonwealth under the name of the
Commonwealth of Australia.

Given at Our Court at Balmoral this Seventeenth day
of September, in the Year of our Lord One
thousand nine hundred, and in the Sixty-fourth
Year of Our Reign.

God Save the Queen.

ERRATA.

PAGE.

50, line 17. For " 30 Vic. c. 11, s. 38," read " 32 and 33 Vic. c. 11, s. 8 "
213, line 9, For " 10,000 " read " 80,000."

298, line 15 from bottom. For " 48 Vic. No. 3 " read " 48 and 49 Vic. c. 23."
318, line 11. For " (1640) 16 Char. I. c. 10" read " (1679) 31 Char. II. c. 2."
322, line 8. For " 3 and 4 Will. 4" " read 5 and 6 Will. IV."
548, line 3 from bottom. For " import " read " export."
949, line 23 from bottom. For " Bank Tax Cases," read " Van Allen v. Assessors "

ADDENDUM.

New Ministry in Victoria. — On the loth November, 1900, in consequence of a
no-confidence vote by the newly-elected Legislative Assembly in Victoria. Mr. Allan
McLean tendered the resignation of his Ministry (see p. .374, injra), which was accepted.
Sir George Turner formed a new administration, consisting of the following members,
who were sworn in on 19th November :- Premier, Treasurer, and Commissioner of
Customs, the Right Hon. Sir George Turner, P.C., G.C.M.G. ; Attorney-General, the
Hon. I. A. Isaacs ; Chief Secretary and Minister of Labour, the Hon. A. .J. Peacock ;
Minister of Public W^orks and Railways, the Hon. W. A. Trenwith ; Minister of
Agriculture, the Hon. J. Morrissey ; Minister of Lands, the Hon. D. J. Duggan ; Minister
of Mines and Water Supply, the Hon. J. B. Burton ; Postmaster-General and Minister
of Public Instruction, the Hon. W. Gurr ; Solicitor- General, the Hon. A. Wynne,
M.L.C. ; Minister of Defence and Health, the Hon. W. McCuUoch, M.L.C. : Ministers
without portfolio, the Hon. E. J. Crooke, M.L.C, the Hon. P. Phillips, M.L.C., the
Hon. S. Gillott, M.L.A., the Hon. R. McGregor, M.L.A.

HISTORICAL INTRODUCTION.

P^RT I.
ANCIENT COLONIES.

(1) HELLENIC CITY-STATES.

Colonies and Plantations. — The terms "Colouy" and ''Planta-
tion " were originally applied to English settlements abroad, or small
communities of English subjects established in foreign parts, princi-
pally for the purpose of raising produce. They were never extended
to English dominions in Europe, such as Dunkirk, Toulon, and Calais,
whilst those places belonged to the kingdom, nor were they, nor are
they at the present time used in reference to Jersey or Guernsey, or
other islands in the English Channel. For some years the terms
colony and plantation were used indiscriminately. In the reign of
Charles 11. " Colony " came into general use, to denote the relation of
dependence in which American Plantations stood to the Crown. A
colony then came to mean a plantation which had a Governor and
civil establishment subordinate to the mother country. In the statute
7 and 8 William III. c. 22, declaring void Colonial Laws repugnant
to English Law applicable to the colonies, and in the Navigation Acts
afterwards passed, the two names are used without distinction. —
Petersdorff's Abridgment, vol. V., p. 540.

In connection with a new instrument of Government Avhich marks
the transition from the colonial system planted in Australia over one
hundred 3'ears ago to a new order of thing's, a higfher and more
complex political organization, a larger measure of self-government,
and a more matured social development, it will be fitting to draw
attention to the origin and growth of British colonies, and to some of
their leading characteristics and achievements, and to compare them
with the colonies of antiquity with which they in some respects agree,
but from which they in more respects differ. They agree in having,
like the older types, sprung from a parent stock, but they differ
materially in the circumstances and motives which led to their
establishment, in their primary structure, and in their relations with
the mother country, as well as in their career and progress.

Greek Colonies. — Various tribes and divisions, of which the
ancient Hellenic race was composed, participated in the settlements
known as Greek colonies. The causes which led to these migra-
tions were the pressure of population on the means of subsistence
within the narrow limits of crowded cities ; internal dissensions conse-
1

HISTORICAL INTRODUCTION.

quent on class domination and party faction ; and a love for maritime
exploration and discovery.

Among the first recorded of these settlements were the Ionian
colonies. After the death of Codrus (b.c, 1100, according to the
early legends of Greek history), Ionian adventurers sailing eastward
and northward from Attica, established themselves in that part of
Asia Minor along the shores of the ^gean sea from Phocaea to
Miletus. Twelve cities were built, the principal of which were
Ephesus and Miletus. They were severally independent of the States
from which their founders had emigrated, but they formed a mutual
association for common purposes known as the Ionic Confederacy.
From this new centre expeditions went forth and planted commercial
emporiums on the shores of the Black Sea, including one from Miletus
which established Sinope, the greatest and most important of the
colonial stations fronting the Euxine. Trebezus (Trebizond) was
afterwards settled from Sinope.

Whilst the lonians were thus engaged, another body of Greeks,
^olians, proceeding from Thessaly and Boeotia, founded ^olian
colonies on the northern islands of the ^gean sea, and on the
northern part of the Avestern coast of Asia Minor. They also were
united in a confederacy of twelve cities, called the ^olian Con-
federacy, the chief of which were Lesbos and Tenedos.

In like manner the Dorians, another Hellenic tribe, settled in the
southern islands and in the southern part of the western coast of
Asia Minor. Six of these cities formed themselves into the Dorian
Confederacy. In 658 B.C., Greek emigrants from Megara established
a colony at Byzantium, commanding an entrance to the Euxine, which
grew into an important centre, and in after ages became Constanti-
nople. The Dorians and other Greeks sailing along the Mediterranean
westward and southward from their central home reached Sicily,
Italy, Gaul (South France), and even Africa; planting in Sicily,
Syracuse and Agrigentum, two of the most splendid cities of the
ancient world; in the forked peninsula of Italy, cities such as
Tarentuni, Sybaris, Croton, Metapontum, Ehegium, Cumje, and
Neapolis (Naples), in which Greek civilization became so advanced
and the colonists so numerous that Lower Italy was known as Grtecia
Magna or Great Greece ; in the south of Gaul, Massilia (Marseilles),
whicli for centuries was one of the most important commercial centres
of the Meditei-ranean ; and on the northern shore of Africa, between
the Nile and Carthage, Cyrene, occupying a fine maritime situation
wliich developed into a city rivalling the Phoenician capital in wealth
and splendour.

The very name " Apoikia," by which these primitive communities
were known, indicated their true character and origin. A Greek
colony was not a mere plantation retaining its connection with the
parent state from which its pioneers had emigrated ; it was literally a
going-away-from-home, a parting, a complete separation. These
colonial groups went away from their old city-states, like swarms
from old hives, to cluster in new hives, to cultivate new lands, to
found new cities, to establish new centres of trade and commerce.
Following, in their tiny ships, the ebbs and flows of the great tidal

ANCIENT COLONIES.

sea, they, for the most part, clung to its coastal regions. They
explored what was to them a new world of strange waters, and here
and there on the narrow fringes of the seaboard they made camps
which grew into towns and bustling cities, pulsating with new life
and new energy. The situations selected afforded convenient sites
within communication, by sea, with their ancient seats, and at the
same time they were accessible to an avenue of retreat from the
invasions of barbarous hordes, should they emerge from the interior.

Greek colonization was not promoted by state-aid or state-
patronage. It was in some instances prosecuted in spite of the
opposition of Greek cities, from which the migrating swarms went
forth. From small beginnings these insignificant groups, whilst pre-
serving the laws, customs, and institutions of their mother-cities,
which they regarded with respect and reverence, grew in power,
influence, and importance, and became autonomous political com-
munities. With one or two exceptions each of them enjoyed the
unfettered right of self-government. Until they became subject to
local despots, or were crushed by foreign conquest, the people of each
colony exercised perfect freedom in the management of their own
affairs ; they appointed their own leaders and magistrates, and, even
in their foreign relations, they were independent of their mother-city ;
they could declare war and make peace with her public enemies. In
every respect, therefore, these small Greek societies were free and
sovereign commonwealths, having the obligation to maintain that
freedom and sovereignty against external attacks, by their own prowess
and with their own resources. They owed no allegiance to any
distant hereditary king, nor were they under subjection to any
political state except their own. The mother-cities from which they
had migrated regarded them as emancipated children over whom they
exercised no direct authority or jurisdiction ; guaranteed them favours
and assistance in times of difficulty and danger, and expected nothing
in return except filial respect and gratitude.

In the course of time some of these Greek colonies equalled if
they did not surpass the mother-cities in wealth, population, art,
philosophy and poetry, and in all the achievements of culture and
civilized life. The only ties tending to draw them together in sym-
pathy were those of common language, common religion and common
blood ; vital forces which seldom fail to yield tremendous results in
the history of mankind. This community of sentiment led in some
instances to something like a federal union between the original states
and their colonial offshoots ; such as the defensive league between
Imperial Athens and the powerful Ionian cities of the JEgean sea and
Asian shore, known as the Confederation of Delos. — Adam Smith's
Wealth of Nations, pp. 249, 252, 454. Conversations Lexicon, vol.
VI., p. 768.

" The Greek colonist, citizen of a city, planted a city. Severed
from his native city, severed perhaps by such a world of waters as
that which parts Euboia from Sicily or by such a wider world of
waters as parts Phokaia from Gaul, he could no longer remain a
citizen of his own city ; he could no longer discharge the duties of
citizenship on a distant spot ; he could no longer join in the debates

HISTORICAL INTRODUCTION

of the old agore ; he could no longer join in the worship of the old
temple ; but he must still have some agore and some temple ; he must
still have a city to dwell in, a city in which still to dwell the life of a
free Greek, when he could no longer live that life in the city of his
birth. So he planted a city, a free city, a city that knew no lord,
that knew no ruling city, a city furnished from the first with all that
was needed for the life of a Greek commonwealth, a city free and
independent from its birth. And he dAvelled in the new city as he
once dwelled in the old ; he gave himself to .make the new worthy of
the old, the daughter worthy of the mother. But did he thereby
deem that he had ceased to be a Greek ? Did he deem that he
had severed himself from Greece ? Did he even deem that he
had broken off from all duty and fellowship towards the city
from whence he had set forth ? No ; dw^ell where he might, the
Greek remained a Greek ; wherever he went he carried Hellas with
him ; in Asia, in Libya, in Sicily, in Italy, in Gaul, far away by the
pillars that guarded the mouth of Ocean, far away in the inmost
recesses of the Inhospitable Sea, wherever he trod, a new Hellas, if
we will, a Greater Hellas, sprang into being ; on those new shores of
Hellas he kept his old Hellenic heart, his old Hellenic fellowship ; he
still kept the tongue and customs of his folk ; he ciave to the gods of
his folk ; he could go to the old land and consult their oracles, he could
claim his place in their sacred games, as freely as if he still dwelled
by the banks of the Spartan Eurotas or under the shadow of the holy
rock of Athens. And how fared he towards the city of his birth,
the metropolis, the mother-city of his new home, the birthplace and
ci-adle of himself and his fellow-citizens of his new city ? Political
tie none remained ; no such tie could remain among a system of cities.
Parent and child were on the political side necessarily parted ; the
colonist could exercise no political rights in the mother-city, nor did
the mother-city put forward any claim to be lady and mistress of her
distant daughter. Still the love, the reverence, due to a parent was
never lacking. The tie of memory, the tie of kindred, the tie of
religion, were themselves so strong that no tie of political allegiance
was needed to make them stronger. The sacred fire on the hearth of
the new city was kindled from the hearth of its mother; the parent
was honoured with fitting honours, her gods were honoured with
fitting offerings; her citizens were welcomed as elder brethren when
they visited the younger city. And when the child itself became a
parent, when the new city itself sent forth its colonies, the mother-
city of all was prayed to share in the work and to send forth elder
brethren of her own stock to be leaders in the enterprise of her
children." — Freeman's Greater Greece and Greater Britain, pp. 26-29.

(2) ROMAN COLONIC.

Roman Colonies. — The Roman system of colonization differed
materially from the autonomous settlements of the Greeks. A
" Colony," as its derivation from the Latin " Colonia " denotes, was
originally a plantation of coloni, or farmers, under the protection of
the central government ; it was not an apoikia or a separate state.

ANCIENT COLONIES. 5

Roman colonies "svere established by the Roman government as a
matter of national policy, and for political and military considerations.
In the early history of the Republic, as the Romans gradually sub-
jugated the various Italian races with whom they came into contact,
lands of the conquered people were divided among Roman citizens,
who were distributed in groups under military protection.

AVhen the Etruscans were finally vanquished, numerous military
garrisons, which developed into colonies, were founded in various
parts of Etruria. The national character of the surviving Etruscans
was in that way gradually destroyed, and they were ultimately
Romanised. Florentia, one of the towns of Etruria, thus became a
leading Roman colony; its greatness under the name of Florence
dates from the Middle Ages. So when the Samnites were finally
conquered Samnium was laid waste and most of the inhabitants were
sold into slavery ; their places were supplied by Roman citizens
clamouring for land. After the conquest of Cis- Alpine Gaul, Yenetia
became a Roman dominion ; military stations were formed, and the
land was divided among the victors, as in the case of Etruria and
Samnium. When Trans Alpine Gaul was brought under the Roman
yoke it was divided into four provinces, in each of which was
established a military colony. The name and identity of one of them,
Lugdunum, situated at the confluence of the Rhone and Saone, still
survives in the name of Lyons. Similarly the name and identity of
another, Colonia Agrippina, on the Rhine, settled by the Emperor
Claudian, is preserved in the modern city of Cologne.

For over three hundred years Britain, like Gaul, was subjected
to the dominion of the Roman Empire. At the maturity of Roman
occupation (304 A.D.) there were five divisions or provinces. Each
of these provinces had a separate local ruler, subject to the Governor-
General of Britain, who was appointed by the Emperor under the title
of Prefect. This Prefect exercised all but sovereign authority, ha^'ing
supreme military and judicial power. Under the Prefect was a Pro-
curator or Qutestor, who levied taxes and administered the revenue.
The chief military and civil power of the Roman Government was
centralised in about one hundred cities ; the principal being London,
Colchester, Bath, Gloucester, Chester, Lincoln, and Chesterfield. Most
of these were built on lands which the Emperor had granted to the
veterans of the conquering legions. The descendants of these
warriors formed the greater part of the population of the cities. The
ten largest cities enjoyed a special privilege, called the Jics Latii, an
incomplete citizenship, which conferred on them the right to elect
their own magistrates. The inferior ones, called Stipendiaries, were
governed by ofiicers under the Prefect's authority, and paid tribute
to the Emperor. — Cassell's History of England, Vol. L, p. 19.

HISTORICAL INTRODUCTION.

F-A.RT IT.
MODERN COLONIZATION

(1) IN AMERICA, AFRICA AND ASIA.

Spanish and Portuguese Colonies. — It was a great day in the
world's history when Christopher Columbus, a Genoese pilot, set sail
from Spain with a small fleet of three vessels bound on that memor-
able voyage which resulted in the discovery of America, and in the
opening of new regions for the industrial activity and enterprise of
civilized man. After years of endeavour he had convinced Ferdinand
and Isabella of Spain that the realms of Indian wealth and treasure
could be reached by sailing in the direction of the setting sun ; that,
the earth being round, the countries of the east could be attained by
sailing to the west, so that communication could be established over
the whole world across the sublime highway of the ocean. Bold
mariner was he, indeed, in that age, when the lamp of science burnt
dimly, to gaze across the wild Avaves of the Atlantic, and, beyond its
primeval darkness, to see the light of promise with its glimmering
rays leading on to modern civilization. How transported with delight
he was when, after tossing about in strange seas for twenty-one days,
without sight of land, he saw grass floating on the waves, and birds
appeared on the western horizon as the gentle messengers of a harbour
of safety. It was on the night of the 12tli October, 1492, that
Columbus from the deck of his vessel descried a dim light flickering
across the waves ; and at 2 o'clock in the morning a cannon shot from
the Pinta announced that a sailor had discovered land.

That light was a spark that has since illuminated the whole world,
and the cannon shot will be heard echoing through all time. To
Christopher Columbus is due the immortal honour of having discovered
the continent of America. He was the first of a long line of maritime
pioneers and discoverers who lifted the curtain of the trackless deep —
who ploughed their way from sea to sea, from ocean to ocean, from
continent to continent, until the great work of circumnavigating the
globe, so daringly begun, was duly accomplished.

The second great voyage which largely assisted to expand the
dominion of European civilization was that performed six years after
the discovery of America, by Vasco da Gama, a Portuguese navigator.
To that distinguished man was entrusted the execution of the project
of sailing from Portugal to India round the continent of Africa. It
may seem strange that both the expedition of Columbus and that of
Vasco da Gama were launched for the purpose of reaching India.
But the fact is that the nearest and safest route to the riches of Cathay
and the trade of India was, to the commercial nations of the south-
west of Europe, a problem of vital importance; they wished to com-
pete with Venice and Genoa, which long enjoyed the monopoly of
that trade by way of eastern caravan routes. Hence it was that the

MODERN COLONIZATION.

Portuguese were endeavouring to explore the western coast of Africa,
with a view to reaching India by passing round its most southern
promontory, many years before Cokimbus conceived the daring idea
of sailing westward to India, in essaying which he was stopped by the
Isthmus of Panama.

The Cape of Good Hope was discovered by Bartholomew Diaz in
1486. It was doubled by Vasco da Gama's fleet in November, 1497,
and subsequently he arrived at Calicut, on the Malabar coast of India,
the goal of his enterprise, where he established a trading station
which marked the beginning of the European conquest of India. In
comparing the achievements of Columbus and Da Gama as pioneers
of oceanic exploration, it may be noted that whilst Columbus crossed
a wild waste of waters, upon which man had never previously
ventured, Da Gama, in circumnavigating Africa, followed the track of
Pharoah Necho, an Egyptian king, whose ships had sailed round
Africa more than 2,000 years before. But, for supreme grandeur, no
exploit in the history of the human race is equal to the voyage of
Fernando Magellan, a Portuguese mariner, who inaugurated an
expedition which first sailed round the world, demonstrating beyond
all doubt the rotundity of our planet, and leading the way to the
discovery of new islands and a new continent in the Southern Hemi-
sphere. In September of the year 1519 Magellan was entrusted by
Charles Y. of Spain with the command of a fleet of five ships fitted
out for the purpose of exploring the southern seas. Magellan
succeeded in discovering the famous straits which bear his name,
running between the southern headland of South America and Terra-
del-Fuego; thence he passed into the broad expanse of the Pacific
Ocean, to which he gave its present name. Continuing his voyage,
he sailed on, and on, month after month, undergoing pi'ivations and
encountering perils, until at last, in the year 1521, he arrived at the
Philippine Islands, north of Australia, where he was killed in a
skirmish with the natives. His vessel, conveying his records, charts
and observations, was brought back to Spain by way of the Cape of
Good Hope. The circumnavigation of the globe was thus completed
after a three years' voyage of unparalleled difliculty and danger; the
saddest event of the expedition being the loss of its intrepid com-
mander before he had seen the accomplishment of his world-wide
enterprise. It must be admitted that this voyage was the most
triumphant in the whole record of navigation, ancient or modern.
It was Magellan who burst through the gates of the American
continent ; it was he who first navigated the majestic Pacific, with its
numerous islands and its mighty highway from America to the Indian
Ocean, preparing the way for much that was to follow in the fulness
of time. Well has Dr. Draper written of Magellan — " He impressed
his name on earth and sky ; on the straits connecting two oceans,
and on clouds of starry worlds seen in the southern sky." — The
Intellectual Development' of Europe, Vol. II., p. 169.

Pioneers of Modern Colonization. — Christopher Columbus, Vasco
da Gama and Fernando Magellan were the first great pioneers of
modern colonization to whom reference must necessarily be made in
any account of the beginning and expansion of England's empire

HISTORICAL INTRODUCTION.

beyond the seas ; for, although theii- expeditions and discoveries were
conducted in the interests and at the expense and direction o£ Spain
and Portugal, the time came when England obtained possession of most
of the countries which they added to the inheritance of civilized man.
They prepared the way for Sir Francis Drake's circumnavigation of
the earth in 1578, and for James Cook's voyage in 1769-70. The
nation and the generation who sow the seed of progress do not
always gather in the harvest, but sooner or later the human race, as
a whole, enjoys and profits by what has been planted " with the
blood and tears of a few." So it was in the case of those renowned
navigators. Where now is the colonial empire of Spain ? Nothing
remains; her provinces were lost in the hurricane of revolution and
conquest. Where is now the colonial empire of Portugal ? Not an
island of any consequence remains to speak of departed fame.

To England fell the greatest and richest share of the glorious
result of those three great voyages which " broke the night of ages ; "
which ushered in modern times with all their bustling activity ; which
directed the course of civilization from the east to the west — from
rivers such as the Nile, the Tiber, the Euphrates, the Danube and the
Rhine, and from inland seas, such as the Black, the Baltic and the
Mediterranean, to the broad Atlantic and the far-reaching stretches
of the Pacific Ocean. From that time the nations of the Medi-
terranean were destined no longer to monopolize the commerce of the
world. Egypt ceased to be the avenue to India ; Europe was startled
by the intelligence brought in quick succession from the new world,
and an impetus of an unprecedented character was given to the spirit
of adventure and discovery. Then began the mighty race for slices
of the new world. England, of the sixteenth century, was not
behindhand ; she now began to lead the vanguard of nations in that
grand struggle. See Seeley's "Growth of British Policy."

In many respects the English at that time were peculiarly
qualified for the work to be done. For over a thousand years the
people of the island had been going through various stages of
preparation and apprenticeship calculated to fit them for the arts of
navigation and colonization. In the first place, England itself had
been for many centuries a colony belonging to different and successive
nations. The Phoenicians, the Romans, the Danes, the Saxons and
the Normans, had, in successive periods, planted colonies in British
soil, which left enduring traces in the country and in the character of
the inhabitants. Then, again, the main element of the amalgamated

Population of Britain was composed of a sea-faring people, having
abits and instincts which attached them to the sea and its
associations. Under these cii'cumstances it is hardly surprising to see
the English come to the front in this remarkable epoch of geo-
graphical discovery and maritime enterprise.

North American Discoveries. — Four years after Columbus had
discovered America, and whilst Vasco da Gama was preparing to
circumnavigate Africa, John Cabot, a Venetian pilot, with his son,
Sebastian, a native of Bristol, obtained from King Henry VII. letters
patent authorizing them to proceed on a voyage of exploration
towards the north-west, in order, if possible, to find, conquer and

MODERN COLONIZATION.

settle unknown lands for the English crown. The King supplied one
ship, and the merchants of Bristol and London placed a few smaller
ones at their disposal, and with this meagre fleet ihe Cabots, father
and son, sailed forth on their dangerous enterprise. The result of
this and succeeding voyages made by John and Sebastian Cabot were
most momentous ; they laid the foundation of England's trans-Atlantic
colonial empire. In June, 1497, they reached the coast of Newfound-
land, or, as some think, of Labrador. Afterwards they sailed
southwards along the eastern coast of the American continent as far
as Cape Florida, near the Gulf of Mexico. They were the first
Europeans who sighted and surveyed the coastline of the vast
territory which was subsequently occupied by the thirteen original
colonies, and which now belongs to the United States Republic. The
discoveries of the Cabots gave England an international claim to the
whole of North America, and that claim, although allowed to remain
dormant for nearly a century, was eventually asserted in an emphatic
and practical manner.

The Spanish devoted their energies and resources to the conquest
of Central America, and a part of South America, together with the
adjacent islands known as the West Indies, whilst the Portuguese
took possession of Brazil ; but neither of these nations explored or
asserted a right to North America. Whilst the Spaniards and Portu-
guese were plundering and enslaving the defenceless natives of the
south, committing unspeakable outrages, and spreading unutterable
ruin wherever the lust of gold induced them to extend their devasta-
ting sway, the English by slow and cautious steps explored the
apparently poor and inhospitable coast of North America. Many
disasters and failures delayed the work of settlement. For many
years after the Cabots, expeditions were sent across the Atlantic by
English enterprise, for the purpose of finding what Columbus failed
to discover — a north-west passage to India. At last these attempts
were for the time given up ; the route of Yasco da Gama round the
Cape of Good Hope was resorted to, and trading factories were
established on the shores of the Indian Peninsula, which were the
feeble beginnings of our Indian empire.

First English Colonies in America. — After John and Sebastian
Cabot, Sir Humphrey Gilbert and Sir Walter Raleigh were two of
the most famous pioneers of English colonization in North America.
Sir Humphrey Gilbert, an English navigator and maritime discoverer,
obtained from Queen Elizabeth, in 1578, a patent empowering him ta
discover and colonize any unsettled lands which he might reach.
This was the first charter granted by an English monarch to found
colonies. Two expressions from this remarkable instrument may be
quoted : He was to take possession of " all remote and barbarous
lands " and to govern them, subject to the proviso that " all who
settled there should have and enjoy all the privileges of free citizens
and natives of England." In his first voyage, in pursuance of this
authority, he sailed for Newfoundland, but returned home unsuccess-
ful. He sailed again in 1583, landed on the shores of Newfoundland,
took possession of the harbour of St. Johns, and shortly afterwards
lost his life in a storm whilst exploring the coast. In 1585 Sir Walter

10 HISTORICAL INTRODUCTION.

Raleigh, one of the most brilliant figures in the reign of Queen
Elizabeth, promulgated a scheme for the settlement of those parts of
North America not appropriated by Christian powers. Through his
great influence with the Queen he obtained an extensive patent for
that purpose, and by the assistance of wealthy friends and relatives
two ships were fitted out for the expedition. It is interesting to
observe that one of the clauses of Raleigh's first patent, like that of
Sir Humphrey Gilbert, provided that the English subjects who
accompanied him should have a guai'antee of the '' continuance and
enjoyment of all the rights which they enjoyed at home." It was a
maxim of the common law that, if an uninhabited country were dis-
covered and peopled by English subjects, they were supposed to
possess themselves of it for the benefit of their sovereign, and that
such of the laws of England as were applicable and necessary to their
situation and the conditions of an infant colony were immediately in
force ; that wherever an Englishman went he carried with him as
much of English law and liberty as the nature of his circumstances
required. — Petersdorff's Abridgment, vol. Y., p. 540. Thus earl}^
was it recognised that Englishmen carried their political birthright
with them over the broad surface of the earth ; that the charters of
freedom for which their ancestors fought were not left behind, but
accompanied them to their new homes beyond the sea. This was the
fundamental principle of English colonization, and it presents a
imarked contrast to the colonizing systems of Spain, Portugal and
France.

In this expedition Sir Walter Raleigh founded a settlement on
Roanoke Island, in what is now North Carolina. A few years pre-
viously a party of French Huguenots had settled at Port Royal, in
what is now South Carolina, and had built a fort which they called
" Arx Carolina " in honour of Charles IX. of France. They had,
however, been murdered by the Spaniards from the adjoining tei'ritory
of Florida. Raleigh's settlement was not successful and was soon
broken up. His vessels brought to England some natural productions
which proved the great value of the resources of the country, and
another expedition was sent out under the command of Sir Richard
•Grenville, a kinsman of Sir Walter Raleigh. This was more success-,
ful, and resulted in the foundation of the colony of Virginia, so named
in honour of the Virgin Queen Elizabeth. It was the first and greatest
of the thirteen colonies established under the protection of the English
flag. It is said that to Sir Walter Raleigh's expedition is due the
introduction of the potato and tobacco plant into Europe. In these
■early attempts at colonization failure and success were blended
together, and it was not until about, the year 1606, in the reign of
James I., that anything like safe and permanent settlement was
•effected in these strange and distant regions.

England's struggle with Spain had been long and deadly, but it
ended with the defeat of the Spanish Armada in the year 1588.
England became mistress of the sea, having only the Dutch as
powerful rivals ; and thus there were no longer serious dangers in
•the way of maritime discovery and adventure.

The reign of the Stuarts, disastrous as it was to themselves,

MODERN COLONIZATION. 11

prolific as it was in civil war and revolution at home, was above all
things distinguished by the growth and expansion of England's first
colonial empire in Xorth America. Herein can be seen the vitality
and energy of the people of whom we are the descendants, and whose
political birthright we now enjoy with the fullest measure of freedom.
During the tyrannical government of Charles I., the disorder and
uncertainty of the Commonwealth under Cromwell, and the perse-
cution and proscription of the Restoration under Charles II.,
thousands of Englishmen and Englishwomen fled from their land to
seek for liberty and safety in the wilds of Xorth America, and these
were the pioneers of that great development of emigration and
colonization which paved the way for the establishment of a greater
Britain in the new world. And here one general remark must be
made as to the character of these momentous movements to which is
mainly owing the stability and success of the early colonies of
America. These colonies were founded by private enterprise, not
with the assistance, but only with the official sanction of the Crown.
This will be best understood by a brief reference to examples.

In the year 1606, the year in which Torres passed through the
straits, which now bear iiis name, and sighted the Australian coast,
two companies were formed for the purpose of colonizing America —
the London Company and the Plymouth Company. To the London
Company was assigned by King James I. South Virginia, which
extended from Cape Fear to the Potomac River; to the Plymouth
Company was granted Xorth Virginia, which extended from the
Hudson River to Xewfoundland. The country between the Hudson
and Potomac was declared neutral territory. This division of
Virsrinia, Xorth and South, included nearly the whole of the eastern
fringe of Xorth America, but that divisional nomenclature was not
long maintained. The London Company was the first in the field,
and began the work of colonization in a practical manner, though at
first with limited success. It was followed by the Plymouth Company,
which also proceeded to distribute grants of land to actual settlers.
The title of each of these companies was a charter from the Crown.
The charter of the Loudon Company contained provision for the
creation of governing councils ; one in London, appointed by the
King, having power to appoint a colonial council, endowed with the
absolute power of Government. The soil was vested in the Company
by grant from the Crown. There was no mention made of repre-
sentative assemblies in either charter, but each contained a clause
somewhat similar to that of Raleigh's first patent, to the effect that
" all British subjects who shall go and inhabit within the said colony
and plantation, and their children and posterity, which shall happen
to be born within the limit thereof, shall have and enjoy all the
liberties, franchises, and immunities of free denizens and natural
subjects within any of our dominions, to all intents and purposes, as
if they had been abiding and born within their own realms of England
or in any of our other dominions." This contained the germ from
which afterwards sprang the system of representative self-government
in the American colonies. In none of the charters, with the
exception of that of Jamaica, to which allusion will presently be made.

12 HISTORICAL INTRODUCTION

was there an express grant of representative government, but the right
was asserted as inherent to and necessarily a part of those liberties,
franchises, and immunities granted in the charters.

In 1607 Thomas Gates and Company sent out, under the leader-
ship of Christopher Newport, three ships containing 105 emigrants,
who were landed at Chesapeake Bay; and on the 13th May of that
year the Commonwealth of Virginia was established by the building
of Jamestown on the James River, which was so named in honour of
the King. This party consisted of gentlemen of fortune, labourers,
and other persons of no occupation, and without families, who were
picked up in London. The friendly Indians sold them land and pro-
visions, and they struggled along, clearing the wilderness and
attempting to cultivate the soil. Owing to misgovernment and
internal dissensions the infant colony was several times on the verge
of starvation and dissolution. In 1609 the London Company super-
seded Gates' Company in the management of the colony and sent out
Captain John Smith, who by his prudence and good counsel saved the
struggling community from destruction. It was next reinforced by
fresh arrivals from England under the direction of Lord Delaware.
By this time the permanent establishment of the new settlement was
assured. Gradually a liberal element began to prevail in the manage-
ment of the London Company, and in 1619 the first representative
p,ssembly came into existence. In the quaint language of an old
chi'onicle, "a House of Burgesses broke out in that year." The
charter of James I. contained no provision for the creation of such an
institution as "a House of Burgesses; " nevertheless that House was
legally acknowledged by the Government of the mother country as
being in strict accordance with the principles of Sir Walter Raleigh's
patent, and with the general scope of the clause of the Company's
charter.

In the same year which saw the forerunner and type of all
American assemblies, convicts were sent out to the colonies from
England, and negro slaves were introduced by the Dutch. The
element of convictism and slavery did not spread to any very large
extent in the early history of America, but they afterwards became
the plague spot of England's colonial empire. The practice of negro
slavery and the transportation of convicts was first introduced by the
Portuguese and the Spaniards. And the system was too readily
followed by other nations.

In 1624, the London Company surrendered its charter to the
Crown, but the House of Burgesses elected by the people survived the
surrender of the charter, and maintained the power of legislation and
taxation, subject to the veto of the Governor. We have referred to
the preliminary history of Virginia at some length, because it was the
earliest settled, and the largest, richest, and most populous of all the
original thirteen states. It was afEectionately called the " old
Dominion," and also the "mother of Presidents," because four out of
live Presidents who ruled the Republic up to the year 1824 were
natives of Virginia. It was the birthplace of George Washington,
Thomas Jefferson, Richard Henry Lee, and Patrick Henry, who
became the leaders of the revolution.

MODERN COLONIZATION. 13

Before passing from Virginia, reference should be made to four
other colonies adjacent to it which were carved out of the original
grant of territory to the London Company. In 1623, Sir George
Calvert, afterwards the first Lord Baltimore, received a grant of land
forming part of Virginia from Charles I. for the purpose of forming a
proprietary colony. It was called Maryland by way of compliment to
Queen Henrietta Maria. The first Lord Baltimore died before the
letters patent were sealed, but the second Lord Baltimore carried out
the scheme in 1632. The Baltimores were Eoman Catholics, and
Maryland was settled by Catholic gentry and others belonging to that
Church, who were driven from England during the fierce persecutions
of these times. Maryland became the "land of sanctuary ,'' and
claimed the proud distinction of being a refuge for the toleration of
all religious denominations. Its form of administration was by a
Governor having a patent right to veto acts of the legislature, which
consisted of an [Jpper House nominated by him, and a Lower House
elected by the people. The colony, according to the patent, belonged
to the proprietors, who nominated an administrative council and
granted governmental privnleges, for which they received certain
consideration.

In 1662 the southern part of Virginia was granted as a proprietary
colony to Lord Clarendon and others by Chai'les II. under the name
of " Carolina." Its early population consisted for the most part of
emigrants from Virginia. The young colony obtained a representative
assembly in 1667, but its form of government was similar to that of
the proprietary colony of Maryland. However, in 1717 the pro-
prietors surrendered their patent to the Crown, and Carolina became
a royal colony by purchase. In 1729, Carolina was divided into two
separate and independent districts. North and South Carolina, which
afterwards became two of the most important states of the union.

Georgia, which was organised into a colony in 1732, was the fifth
distinct settlement carved out of the Virginia foundation.

Passing now to the northern group of colonies which were formed
out of the territory assigned to the Plymouth Company, we find a
record of progress and cultivation of the soil proceeding in the teeth
of trials and obstacles as extraordinary as those experienced in the
history of Virginia and its offshoots in the south. Under the direction
and with the license of the Plymouth Company, a settlement was,
during the year 1620, formed at Massachusetts Bay by the famous
and heroic " Pilgrim Fathers," who were compelled to leave England
on account of the persecution to which they were subjected for their
non-conformity to the Church of England. The sailed from South-
ampton for America to the number of 102 persons, in the Mayfloicer,
a little vessel of 160 tons burden, and landed on 21st December, 1620,
at a place which they named New Plymouth, where they long had a
desperate struggle for existence owing to the coldness of the climate,
the poverty of their circumstances, and attacks by the Indians. They
were afterwards joined by a society of Puritans, who also sought
refuge there from the ecclesiastical policy of Charles I. Massachusetts
became the centre and leader of four important colonies which in a
few years sprang into existence in the North, between the Hudson

U HISTOEICAL INTRODUCTION.

River and Newfoundland. They were known as the New England
Colonies, New England being the designation applied to the whole of
that region by Captain John Smith, who explored the coast in the
year 1614.

Settlers went to the south of Massachusetts, and formed the
colonies of Connecticut and Rhode Island, which received separate
charters from the Crown. A fishing village to the north of Massa-
chusetts, established under a grant of land to one John Mason, became
the nucleus of the colony of New Hampshire.

Such were the four important plantations formed out of New Eng-
land, the territory of the Plymouth Company. The Plymouth Company
finally surrendered its charter, and Massachusetts received an inde-
pendent charter from Charles I. in 1629, whilst Connecticut and
Rhode Island received separate charters from Charles II. in 1662.
These were the famous New England colonies, in which there was a
larger measure of political freedom and local self-government than
in any of the North American plantations. They were chartered
colonies, in which the sovereign parted with his rights and preroga-
tives either wholly or in part to the settlers, who elected their own
representative assemblies, having the power of legislation without
appeal to the Crown, there being no royal governor or royal agent
within the colonies. They elected their own governors, as well as
their Parliamentary representatives in the Upper and Lower Houses.
The Home Government did not interfere with them in any way.
They were, in fact, simple democracies, if not veritable republics, the
highest achievement in the way of political organisation, and the
nearest approach to independent states attained by any of the thirteen
colonies before the revolution. The only terms and conditions under
which these colonies held their charters of colonization were, first,
allegiance to the Crown, and, secondly, that one-fifth of the gold and
silver found within their jurisdiction should be paid to the King. In
the year 1665, only 40 years after the foundation of Massachusetts,
and 100 years before the Declaration of Independence, we find the
people of that settlement asserting that they did not regard themselves
as subject to England, and maintaining that as long as they paid one-
fifth of all the gold and silver according to the terms of their charter
" they were not obliged to the king, but by civility." These advanced
ideas of colonial independence and autonomy received a startling
development and a determined assertion during the subsequent con-
flict with England, for it was in Massachusetts that the battles of
Lexington and Bunker's Hill were fought.

We have now referred to two groups of colonies, that of Virginia
and that of Massachusetts, which are described as the original foun-
dations of British colonization in North America. There remains a
third group, which grew up in the neutral zone between the Potomac
and the Hudson rivers, between Virginia and New England. Whilst
settlement was proceeding in the vast country to the north and the
south, this central territory was explored by the Dutch, who established
a trading station at Manhattan, the site of the present city of New
York. The Dutch Government assigned this locality to the Dutch
West India Company. It was named New Netherlands, and the town

MODERN COLONIZATION. 15

which sprang into existence at the mouth of the Hudson, a river
discovered by Henry Hudson, an Englishman in the service of the
Dutch, was called New Amsterdam. The Dutch, however, had a very
precarious title and tenure of this country, and they were soon
cleared out of North America. After the restoration of Charles II.
in 1660, England and Holland went to war, and a fatal blow was
struck at the colonial possessions of the Dutch. An English fleet
under Colonel Nichols proceeded to New Amsterdam and conquered
it, driving out the Dutch, and converting it into an English settle-
ment. It was granted as a proprietary colony by Charles II. to his
brother, the Duke of York, after whom it received the name of New
York. The Duke granted a part of the territory of New York to Lord
John Berkeley and Sir George Carteret, who formed out of it the
colony of New Jersey.

In 1681, the square tract of country to the west of New Jersey
was granted by Charles II. to William Penn, the celebrated English
Quaker and philanthropist, in satisfaction of a monetary claim against
the Crown. Here arose another proprietary colony under the never-
to-be-forgotten name of Pennsylvania. Penn had been unjustly
persecuted for his religious faith ; and his great desire was to
establish a home for himself and his co-religionists in the distant
wilderness of the west where they might enjoy religious and political
liberty ; where they might preach and practice according to their
convictions in peace and quietness. Penn planned and named the
great city of Philadelphia, and framed a liberal constitution for the
young settlement, which became what Maryland was to the Catholics,
and New England to the Puritans — a refuge and a sanctuary for the
persecuted brethren, hunted out of their native land. Penn also-
purchased from the Duke of York a small strip of New York territory
which was added to Pennsylvania until the revolution, w^hen it was
erected into a separate State called Delaware.

Classification of the Original Colonies. — Having sketched the
thirteen original provinces of North America we are now in a position
to consider generally their peculiar distribution and classification.
First, as regards their location ; the southern group consisted of five —
Virginia, Maryland, North Carolina, South Carolina and Georgia ;
the northern group consisted of four — Massachusetts, New Hampshire,
Connecticut and Rhode Island ; the central group consisted of four —
New York, New Jersey, Pennsylvania and Delaware.

The political constitutions, or forms of government of these
colonies comprised three classes. First came the royalist colony of
Virginia, which was always subject to the influence of the Crown
more than in any other, even from the first, when the Executive
Government was vested in a prerogative-created Council. Virginia
became a thoroughly royalist colony in 1620, when the London
Company decided to surrender its charter to the Crown. So New
York, which began as a proprietary colony, was converted into a
royalist colony when its proprietor, the Duke of York, became King
as James II. Virginia may be regarded as the type and model of
modern colonies, in which representative and responsible government

16 HISTORICAL INTRODUCTION.

is the prevailing system, with a Governor appointed by the Crown as
the agent of the sovereign to watch imperial interests.

The proprietary colonies were Maryland, New Hampshire, Penn-
sylvania, Delaware, Carolina, New Jersey, Georgia, and, in its early
career, New York. In this class of colonies the soil Avas granted to
and vested in certain proprietors or companies, who exercised the
governmental powers which, in royalist colonies, were enjoyed by the
king; they appointed administrative Councils to conduct public
business; and sometimes they nominated their Governors, who had by
charter the right of veto on the legislation of the colonial assemblies.
This plan of colonization, which may be compared to that adopted by
the East India Company, was found not to work satisfactorily as the
population increased, and as conflicts between private and public
interests arose. In time the proprietors became tired of continual
quarrels and dissensions with the colonists, and one by one they either
surrendered or lost their charters, until by degrees all the colonies
assumed the royalist form of government, with the, exception of two.
The chartered, colonies were Massachusetts, Connecticut and
Rhode Island, in which, by their original title deeds from the Crown,
the people had the right of choosing their own Governors, their own
magistrates, and their own representatives, to make, interpret, and
administer their own laws. They could repeal and abrogate the
common law of England, except the general law of allegiance and
dependence, without the danger of a veto by the Home Government.
They could also repeal and abrogate the statute law of England,
except such Acts as were expressly applicable to the whole empire.
Massachusetts, however, lost its charter in consequence of proceedings
taken against it in England by Charles II. After that it became a
quasi-royalist colony. At the time of the revolution in 1770, Con-
necticut and Rhode Island were the only chartered colonies. It may
be observed that the chartered colonies had a much larger instalment
of constitutional liberty and local independence than any existing
dependency of the British Crown.

Speaking generally of this survey of the political organization of
the early North-American settlements, it is to be remarked that in
their matured history they had local autonomy, self-government, self-
taxation, and political equality, and that there was no State Church
and no official aristocracy to become an incubus or a source of strife
and bitterness. The transplanted institutions and franchises of the
old country took root and flourished in the new country under the
guidance and protection of bold and hardy bands of pioneers, who
laid the foundations of a mighty Anglo-Saxon empire along the coast
of the Atlantic. They carried with them the traditions and charters
of their ancestors ; Magna Charta, the Petition of Rights and the
Bill of Rights formed a part of their political inheritance as much as
those muniments of title were the birthright of those of their fellow
countrymen whom they left behind them.

We are now in a position to notice the truth and importance of
the statement with which this account of the American colonies was
introduced. They were established not by Government agency,
assistance or direction, but by private adventurers, who left their

MODERN COLONIZATION. 17

native land in search of that freedom denied them at home. The
Anglican Cavaliers of Virginia, the Puritans of New England, the
Quakers of Pennsylvania and the Catholics of Maryland emigrated
from the land of their forefathers, and fought their way in the
waste wilderness of the new world in order that they might escape
political proscription and religious persecution ; that they might
establish hearths, homes and hamlets where they would be far away
from tyranny, spoliation and martyrdom. In other words, these
colonies were places of refuge from the fierce political and ecclesi-
astical domination which prevailed in England in the seventeenth
century, during the reigns of James I. and Charles I., the Protect-
orate, and the Restoration under Charles II. and James II.

West Indian Colonies. — Leaving the thirteen provinces of the
mainland, let us now glance at the progress of English colonization in
other parts of the globe during the later half of the seventeenth
century. Barbadoes is the oldest discovered British colony in the
West Indies. It was taken possession of in 1605, when a party of
roving Englishmen planted a cross on the island, and inscribed the
words "James, King of England;" but no actual settlement was
effected on it until 1624, when a patent for the island was granted to
the Earl of Carlisle, as sole proprietor. A large number of royalists
emigrated to Barbadoes during the civil war between Charles I. and
his Parliament, and it became a prosperous and populous sugar-
producing colony. Bermuda, another of the earliest West India
plantations, was colonized from Virginia and England shortly after
1609. Jamaica, the largest and wealthiest of our West Indian pos-
sessions, was taken from the Dutch by an expedition sent out by
Oliver Cromwell during his protectorate in the year 1655. Charles II.,
after the restoration of 1660, sent a Governor to Jamaica, and
provided for the creation of an elective Council to legislate for the
colony. This has been described as the first representative colonial
Constitution granted by the Crown of England to any of its posses-
sions and plantations abroad; for it will be remembered that there
was no express grant of elective assemblies by the Crown to any of
the American colonies. In the eighteenth century Jamaica became
the greatest sugar-producing country in the world, but it afterwards
declined through the exhaustion of the soil and the competition of
new sugar countries.

Canadian Colonies. — Glancing northward of the New England
colonies, we come to Newfoundland, which was discovered by
Cabot in 1497 ; but England had a very doubtful title and precarious
possession of that territory up to the end of the sixteenth century, as
it was claimed by powerful and persistent French rivals. Newfound-
land was not permanently settled by English emigrants until 1624,
fourteen years after the planting of Bermuda. Though it was not
that part of the American soil which was first settled from England,
Newfoundland claims to be the earliest of existing British colonies
from the fact that it was first discovered ; and in the Colonial Confer-
ence held in London, in 1887, the representatives of Newfoundland
were held entitled to the precedence attached to seniority.

At the time when Newfoundland was first colonized. Nova Scotia,

18 HISTORICAL INTRODUCTION.

New Brunswick and Canada belonged to France by priority of occu-
pation. Although the coast of Canada was discovered by Sebastian
Cabot in 1497, its interior was not explored by Europeans until 1541,
when Jacques Cartier, a French navigator, sailed up that great arm of
the sea which penetrates into the lake country, to which he gave the
name of the River St. Lawrence. Jacques Cartier founded the first
settlement at St. Croix's Harbour, but little progress was made for
nearly 100 years. In 1603, Samuel Champlain, a French naval officer
and marine explorer, was commissioned to initiate colonizing establish-
ments in the New World, and he is justly celebrated as the pioneer of
French exploration in North America. In his first voyage Champlain
ascended the St. Lawrence to the part where Jacques Cartier had
been stopped. In his second voyage he visited the coast of Nova
Scotia. In his third expedition, in 1608, he fixed the site of the town
of Quebec on the heights of Abraham, overlooking the St. Lawrence,
and he also ventured as far as Lake Ontario and Lake Champlain, to
which he gave his name. Quebec was founded and French settle-
ment began in Canada a few years before the voyage of the Mayflower,
The French possessions were gradually extended westward and south-
ward from the St. Lawrence to the Mississippi, and down that river to
its mouth. The whole of the country at the back or westward of the
thirteen states of America, the Hinterland, including the valley of
Ohio and all Canada, was in the beginning of the eighteenth century
claimed by France, which contended that the Alleghanies were the
western limits of the British dominions.

British Possessions in India. — Before proceeding to show how
France lost that vast colonial empire, we may draw attention to the
march of British influence and the planting of British trading stations
in Africa and Asia. After many fruitless attempts to find a north-
west passage to East India, English merchants, traders and adven-
turers adopted the route discovered by Vasco da Gama, and sent their
vessels to India by the Cape of Good Hope. In 1585, Queen
Elizabeth granted a patent to a company to trade to Gambia, on the
West Coast of Africa, but no settlement of any consequence was
effected in that region until 1625. In its subsequent history Gambia
became a notorious centre of the slave trade.

In December, 1600, Queen Elizabeth granted a charter to a com-
pany formed for the purpose of carrying on a trade with countries
beyond the Cape and the Straits of Magellan. This company, which
was the beginning of the famous East India Company, established a
few trading factories in India, but their commerce was for many years
very meagre. By the end of the eighteenth century the progress of
the East India Company in the Peninsula of Hindostan had not
advanced beyond the factory stage. The Company were simply
leaseholders under the great Indian Princes, by whose leave they
established trading stations in various localities along the sea coast.
In the struggle for commercial ascendancy the East Indian Company
had to contend with powerful rivalry from the French and the Dutch.
But the Company, which was incorporated by Royal Charter and
vested with sovereign powers by the Crown, ultimately became master
of the whole of India. The history of its struggles and final triumph

MODERN COLONIZATION. 19

in laying the foundation of the British Empire in India is one of the
most romantic and extraordinary in the whole record of colonization
and conquest. These momentous events must be briefly summarised,

Madras, the present capital of the presidency of that name,
situated on the Coromandel (south-east) coast, was founded in 1639
by the Company, who obtained from the Rajah of Chandgerry a grant
of a piece of land for the erection of a town and fort. Fort St.
George, built in this district, was the first place where the British
obtained a permanent footing. Madras soon grew into a flourishing
city and became the central station of the Company along the
Coromandel Coast.

Bombay is, next to Madras, the oldest British possession in India.
It was granted to the Portuguese by an Indian chief in 1530, ceded
by Portugal to England in 1661, and transferred to the East Indian
Company by King Charles II. in 1668.

The first factory established by the Company in Bengal was
built on the HoogJy in 1664. The Company's representative, Job
Charnock, was driven thence in 1686, and in 1690 he founded another
settlement on the Hoogly, which expanded into the town of Calcutta.
The site of the settlement was granted to the Company by the Nabob
of Bengal, and the grant was confirmed by the Emperor Aurengzebe,
the last of the Moguls. Fort William was built at Calcutta in 1699,
and it was so named after William III.

Such were the early and humble beginnings of the British East
India Company. After the death of Aurengzebe, in 1 707, the native
princes who owed feudal allegiance to the Mogul Empire began to
quarrel among themselves, and the French and English interfered to
quell the disturbances. It was then evident that the political
organization of India was thoroughly rotten, and that only a strong
arm was required to conquer and possess the whole country, and
reduce the native princes to subjection. Then began the great con-
test between the French and British in India for the ascendancy and
empire. At first the French maintained their superiority, but in the
end they were defeated and driven out of India by the Company's
forces, and the victory of Lord Clive at the Battle of Plassy on 26th
June, 1756, established the exclusive sovereignty and supremacy of
the British in India.

South African Colonies. — The Cape of Good Hope was first
discovered in modern times by Bartholomew Diaz in the year 1486-7.
The heavy seas which rolled along the coast prevented him from
landing, and hence he named it the ''Cabo doz tormentos," the "Cape
of Storms," but King John II. of Portugal altered the name to " Cabo
da Bona Esperanza," the Cape of Good Hope. Yasco da Gama doubled
the Cape a few years afterwards on his voyage to India. The Portu-
guese, however, never formed any permanent establishment there.
The Dutch took possession of it in 1650, and it became a powerful
station for them in their journeys to and from their trading factories
in India and Batavia. It was captured by the British in 1795, was
restored to Holland at the Peace of Amiens in 1802, and was again
captured in 1806. At the Congress of Vienna, in August, 1814, the
Dutch colonies at the Cape of Good Hope, and in South America,

-20 HISTORICAL INTRODUCTION.

were ceded by the Netherlands Government to Great Britain, six
millions sterling being paid as part consideration for the transfer.
On 11th March, 1853, Cape Colony was granted a Representative
Legislature, composed of two elective chambers, followed in 1872 by
the concession of Responsible Government. Between 1861 and 1870,
British Kaffraria was added to the colony, and in 1880 Fingoland and
Griqualand West were similarly incorporated. In 1894 and 1895,
West Pondoland and British Bechuanaland became part of the same
growing Dominion. Dutch farmers or Boers, who left the colony
shortly after 1835, established the Republics known as the Orange
Free State and the Transvaal.

In May, 1843, Natal, where the Boers were prevented from
forming a republic, was proclaimed a British settlement and remained
a part of Cape Colony until 1856, when it became a separate colony
under a Royal Charter, authorized by statute, with a Governor and a
Legislative Council partly elective and partly nominated. In 1 893, a
new Constitution, embodying a bi-cameral legislature and accompanied
by Responsible Government, was granted. In 1897, Zululaud was
made a province of Natal.

Through the enterprising operations of the British South Africa
Company, led by Mr. Cecil Rhodes, the vast regions south of the
Zambesi, known as Southern Rhodesia, formerly Mashonaland and
Matabeleland, and north of the Zambesi known as Northern Rhodesia,
including Nyassaland, have been, since 1888, added to the Empire.
They are destined in course of time to be partitioned into a group of
self-governing colonies.

Conquest op Canada. — From this survey of the progress of the
British flag in Asia and Africa, we return to our review of the march
of events in the New World during the eighteenth century. The
Seven Years War with France, which terminated in the Peace of Paris,
1762, left Great Britain the first State in the world, with the equivocal
reputation of the " Tyrant of the Seas." It was in this war that she
completely established her supremacy on the ocean, which she first
began to assert upon the defeat of the Spanish Armada. It was in
this war, so vigorously prosecuted by the first William Pitt, after-
wards Lord Chatham, that England obtained possession of the whole
of North America, and drove the French out of Canada as they had
been driven out of India. The story of the invasion of Quebec by a
British expedition sent up the St. Lawrence under the command of
General Wolfe, the scaling of the Heights of Abraham by our troops
in the dead of night, the fierce battle which followed on the plateau,
the gallant defence of the French under General Montcalm, the
victory of the attacking party, and the death of both noble and
heroic commanders in the midst of the fight, is one of the most
thrilling in the whole range of naval and military history. This
event was followed by the surrender of all Canada to the British, and
the French power in that quarter of the globe was thus absolutely
annihilated. But France had her revenge on Great Britain at a later
date, when she assisted the American colonies in their revolt against
the mother country.

MODERN COLONIZATION. 21

Loss OF THE American Colonies. — To those coloniee we must
now once more refer^ and see how it came about that Britain lost the
brightest jeweJ in the crown of a thousand years. During the first
half of the eighteenth century the American colonies along the
eastern coast of what is now the territory of the United States made
enormous progress in settlement and internal prosperity. Neglected
and uncared for in the early years of struggle, they sprang into
importance and commanded attention from the people and govern-
ment of England when their trade increased and their resources were
developed. Whilst they enjoyed the amplest measure of local
autonomy and local self-government, there was one serious exception
and limitation to their legislative power. The Home Government
claimed the right of regulating their external trade and commerce.
Their export and imr»ort trade was watched with jealousy, and hedged
about with hampering restrictions. They could not amend or repeal
the slightest fiscal regulations, however obnoxious or oppressive.
Apart from this, they had absolute freedom and independence ; but in
matters of trade, the British Parliament asserted its supremacy. The
Navigation Laws passed during the Commonwealth under Cromwell,
and mainly directed against the Dutch, with a view to ruin Dutch
commerce, and the Dutch mercantile marine, were the basis of the
colonial policy which subsequently pressed so heavily on the colonies.
The main provisions of these laws were that no commodities of Asia,
Africa, or America could be imported into Great Britain or her
colonies except in British ships. This restricted the markets of the
colonies, as they could not trade directly with other nations. On the
other hand, Great Britain imposed high protective duties on the goods
of foreign countries in favour of her colonies. Then there was a
restriction on the manufacture of their raw products by the colonies
and on the direct importation of the goods of foreign countries. This
constituted what is called the old " colonial system," which was at the
root of the quarrel and the war which led to American separation.

We are now brought down to the reign of George III., a period
well described as " the most eventful in the history of the human
race," marked by two thrilling tragedies — the War of American Inde-
pendence and the French Revolution. It was in the year 1764, that
George Grenville, the Chancellor of the Exchequer, nicknamed " The
Gentle Shepherd," induced the House of Commons to take the fatal
step of attempting to draw a revenue from America by the taxation
of the colonies. By the Stamp Act, 5 Geo. III. c. 12, he secured the
imposition of duties on certain commodities imported into America
from other European colonies, and also stamp duties similar to those
contained in our own Stamp Acts. This was a violation of the funda-
mental principle of Constitutional Government — that there should be
" no taxation without representation."

The news was received in America with indignation, and with a
stern determination to resist. Virgfinia took the lead in orsranizinsr

-rrr

confederate resistance. In the House of Burgesses at Williamsburg,
Patrick Henry spoke against the Stamp Act with burning eloquence.
" Cjesar had his Brutus,'^ he cried, "Charles I. had his Oliver Crom-
well, and George III. " "Treason! Treason!" interposed the

22 HISTORICAL INTRODUCTION.

Speaker. "And George III. may profit by their example," replied
Patrick Henry. "The torch of confederate opposition 'was carried
through every colony like a fiery cross." — Casseirs History of Eng-
land, vol. v., pp. 58-71.

In October, 1765, the first Congress of Delegates was held in
New York, at which resolutions were adopted, denying the right of
the mother-country to tax the colonies without representation. The
Stamp Act was repealed in the following yeai', by the Act 6 Geo. III.
c. 11, but the British Parliament carefully avoided any appearance of
a surrender of its rights. Indeed, it passed a Declaratory Act (6
Geo. III. c. 12) affirming the subordination of the colonies and the
supreme authority of the Crown and Parliament of Great Britain.
The mad policy inaugurated by George Grenville was followed, in
1767, by his successor, Charles Townshend, who as Chancellor of the
Exchequer proposed the reduction of the Land Tax to relieve the
country gentlemen, and, in order to make up the resulting deficiency
in the revenue, determined to impose new taxes on goods imported
into America, including tea. This scheme was carried in the Commons
with the utmost indifference, and with hardly any debate. These
Customs duties rekindled the fires of revolution in the colonies. The
Republican party increased in power and influence. Non-importation
societies were formed. Resistance and rebellion were openly advo-
cated. The storm gathered in every quarter, and at last broke out in
the seizure and destruction of several cargoes of dutiable tea in
Boston Harbour. The Declaration of Independence was signed by
the representatives of the thirteen colonies on the 4th July, 1776.
The die was cast, and the great American catastrophe was brought
about by the ruinous policy of " an infatuated King, a stone-blind
Cabinet and a corrupt Parliament." The battle of Bunker's Hill, the
surrender of General Burgoyne's army at Saratoga, the surrender of
Lord Cornwallis' army at Yorktown, the mismanagement of British
generals, the bravery of British soldiers, the pluck and patriotism
of the colonial forces under George Washington, the recognition of
the Independence of America in 1783, and the adoption of the federal
constitution in 1787, are stirring events which can be only alluded to
here for the purpose of urging a closer study. — Cassell's History of
England, Vol. V., pp. 71-100.

Britain's Second Colonial Empire. — During one of the exciting
debates which took place in the British Parliament on the subject of
the American War, Lord Shelburne exclaimed, " When the Inde-
pendence of America is admitted, the sun of England will have set for
ever." That prediction was doomed to be falsified. No doubt the
loss of her American colonies was a fearful blow to the Britain of 1783.
But the world was wide, and colonization was still young. Canada, a
vast tract of country extending from the Atlantic to the Pacific
Ocean, still belonged to Britain. Many loyalists fled from the southern
colonies during the revolutionary wars and commenced the foundation
of new settlements in Canada, which promised to be as great in wealth
and population as some of the colonies that were lost.

In 1791, by the Act 31 Geo. III. c. 31, Canada was divided into
two provinces, Upper Canada, afterwards Ontario, and Lower Canada,

MODERN COLOXIZATION. 23

afterwards Quebec. In each province representative institutions were
established, but the Executive was vested exclusively in the Crown.
This system lasted until 1840, when the Canada Union Act, 3 and 4
Vict. c. 35, was passed. (R. R. Garran, The Coming Common-
wealth, p. 81.) Under this Act the two provinces were united
in one Constitution. A new Parliament, consisting of a Legislative
Council, nominated by the Crown, and a Legislative Assembly, elected by
the qualified inhabitants, coupled with Responsible Government, was
constituted for the United Provinces. The new machinery of govern-
ment was brought into operation under the Governor-Generalship of
Mr. C. Powlett Thompson (afterwards Lord Sydenham) on 30th June,
1841. By the British North America Act, 1867 (30 and 31 Vict.c. 3)
the two Canadas, Nova Scotia and Xew Brunswick, were federally
united in one Dominion by the name of Canada. The new Constitu-
tion was proclaimed on the 1st July, 1867, Lord Monck being
Governor-General. The new province of Manitoba joined the Union
in 1870, British Columbia and Vancouver Island in 1871, and Prince
Edward Island in 1873. Newfoundland is the only British colony in
North America which has not joined the Dominion.

The southern hemisphere was destined to present to Great Britain
a new Colonial Empire to replace the one that was lost. The same
year, during which the Americans were welded " into a more perfect
union" by their federal constitution of 1787, saw Captain Arthur
Phillip, with the " first fleet," on his way to the Southern Ocean in
order to establish a settlement on the eastern shores of Australia,
which had just been discovered and explored by Captain Cook.

(2) IN AUSTRALASIA.

From Magellan to Cook. — No one man, no one nation, can
exclusively claim the honour of having discovered Australia. Justice
demands the acknowledgment that many brave mariners and the
Governments of several pioneering and exploring countries assisted in
the gradual unfolding of the situation and outlines of the great con-
tinent. See Barton, ''History of New South Wales," Vol. I., pp. 25-39.
In his interesting work, " The Discovery of Australia " (1895) Mr.
George CoUingridge (Sydney) propounds the thesis that either
Spaniards or Portuguese discovered and charted the continent as
early as 1508. He publishes a copy of what purports to be a French
map of the world by Oronce Fine, dated 1531, in which "Terra
Australis " is represented as forming part of an extensive ant-arctic
land, and another, dated 1546, in which it is described as Java-la-
Grande, with a small channel dividing it from the true Java. In an
article in the Geographical Journal, October, 1899, Mr. George
Heawood expresses the opinion that there is no authentic evidence
that Australia was discovered before 1606. A number of events and
incidents have, however, been commonly associated with the history
of Australian discovery prior to 1606 ; these cannot be passed over
or disregarded ; they may be here mentioned with the observation
that the evidence on which thev are based is vagme.

24 HISTORICAL INTRODUCTION.

It is said by some writers that in 1527 a Portuguese mariner
named Menezis penetrated the Southern Ocean and touched at a
group of rocky islands to which he gave the name of Abrolhos, and
which may now be seen marked on the map, lying to the westward of
Champion Bay, Western Australia. (Australian Hand Book, 1897,
p. 363.) From maps and documents in the British Museum and the
War Office of Paris, it would appear that a Provencal navigator,
named Gillaume le Testu, a native of the French city of Grasse, dis-
covered some portion of the Australian continent in the year 1531.
Early in the year 1542 an expedition was despatched from Spain
under the command of Luis Lopez do Yillalobos to follow up the
voyage of Magellan in the Pacific Ocean. He took possession of the
Philippines for Spain, and coasted along a large island to which he
gave the 7iame of New Guinea, and which was then thought to be a
part of the Great Unknown Southern Land, which Ptolemy, the
geographer, supposed to exist south of the Indian Ocean. The next
record is that in 1598, a Portuguese mariner named Houtman reached
the Abrolhos, with which his name became associated. In 1605,
Pedro de Quiros was despatched by the Court of Spain to the South
Sea in command of a fleet of three vessels. On April 20th, 1606, he
discovered one of the islands of the New Hebrides, which he believed
formed part of the Southern Continent, and to which he gave the
name of " La Austrialia del Espiritu Santo." In a memorial to
Philip III. of Spain (the head of the house of Austria) de Quiros
explained that he had named it " for the happy memory of your
Majesty and for the sake of the name of Austria, because on your
bii'thday I took possession of it." — Collingridge, Discovery of Aus-
tralia, p. 248. One of his ships, commanded by Luis Vaez de Torres,
became separated from the rest, and sailing westward he saw land
which he believed to be the eastern extremity of New Guinea. He
skirted along its southern coast and saw land to the south as he pro-
ceeded westward and passed through those straits which now bear his
name. Torres was probably the European who first caught sight
of the continent, afterwards to be known as Australia. The stories
with respect to Menezis and Houtman are unsatisfactory. — Story of
Geographical Discovery, Joseph Jacobs (1899), p. 158.

Other Avriters have, however, claimed for Dutch mariners the
credit of being the first Europeans to sail in Australian waters.
Wliilst the Spaniards and Portuguese were engaged in exploring the
South Seas the Dutch were not idle. From Batavia, the central
station of their Indian trade, they sent out ships in search of islands
and commerce. On 18th November, 1605, the Dutch despatched the
ship Duyfhen (Dove) from Bantam in Java, to explore New Guinea.
It is claimed for the Duyfhen that she skirted the west and south
coast of New Guinea for nearly one thousand miles, sighted Cape
York, touched the eastern shore of the great indentation, afterwards
known as Carpentaria; and that some of her crew landed on the
shores of the Gulf and were killed by the natives. " The exact dates
of the respective discoveries of Torres and the commander of the
Duyfhen cannot now be ascertained; but as the Dutch vessel had
arrived in the island of Banda, on her return to Bantam, in the month

MO])ERN COLONIZATION. 25

of June, 1606, while the letter of Torres, communicating an account
of his vovage to the Spanish Admiralty, is dated at Manilla, in the
month of August following, Captain Flinders conjectures, with everj
appearance of probability, that the honour of the discovery of
Australia is due to the Dutch, and that it must have taken place in
the month of March, 1606, a few months before the discovery of
Torres."— Lang's History of New South Wales (1875), p. 3.

Eeferring to the conflicting claims for the honour of the dis-
covery of Australia, Dr. Lang wrote : — ^' Whether these allegations,
however, are well founded or not, we have to console ourselves, as
Britons, with the comfortable reflection that, while neither the French
nor the Dutch, neither the Spaniard nor the Portuguese, ever made
any account of their alleged discoveries, we, the only practical people
in the lot, have already, by following and settling in the track of our
own great navigator. Captain Cook, founded a whole series of noble
empires of the future in the Great South Land." — History of New
South Wales (1875), p. 4.

Many Dutch navigators explored the west and southern coast line
of the supposed continent during the seventeenth century, and left
behind them lasting evidences of their visits, in the shape of names
of islands, capes, and bays, which now figure prominently on the map
of Australia. The first authentic discovery of any part of the west
coast of the continent is said to have been made by Captain Dirk
Hartog, who sailed from Amsterdam, in the Endraaght (Concord), in
1616. To the laud en the west coast near the 25th parallel, which he
visited, he gave the name of his vessel : Endraaght^s Land. To one
of the islands off the main coast he gave his own name. Dirk Hartog,
and to another the name of Dorre, one of his sailors. The bay
adjoining the island was afterwards named by Dampier Shark's Bay.
In 1619 Captain Jan Edel visited that part of the coast south of
Endraaght's Land. The south-west cape was rounded by Dutch
mariners in 1622, and received the name of the vessel, '^Leeuwin"
(Lioness), in which the discovery was made. In 1627 Captain Van
Pieter de Xuyts in the Guide Zeepaert (Golden Serpent) cruised along
a considerable part of the south coast of the continent, which he
called Nuyts Land. Captain Pieter Carpenter, an oflBcer in the
service of the Dutch East India Company, in 1627, explored and gave
his name to the Gulf of Carpentaria. In 1628-9 Captain Pelsart, in
command of the Batavin, was wrecked on the west coast at the spot
known as Houtman's Abrolhos. The most important discovery made
by the Dutch navigators, in the seventeenth century, was that of Abel
Janssen Tasman. In 1642, Anthony Van Diemen, the Dutch Governor-
General of Xetherlands India, organized an expedition to explore the
coast of Australia, which had been sighted by so many Dutch adven-
turers, but which still remained a terra incognita. Tasman was placed
in command. He sailed from Batavia on 16th August, 1642, proceed-
ing southward until he almost reached the 44th parallel. On 24th
November, 1642, land was seen, to which he gave the name of Van
Diemen's Land. The land first seen by Tasman is supposed to have
been Point Hibbs. He saw and named Storm Bay ; discovered and
named Maria Island, and then sailed eastward. On 18th December

26 HISTORICAL INTRODUCTION.

he discovered land, which he called Staaten Land, but which after-
wards acquired the name of New Zealand; he anchored in a bay in
the Strait, between the North and Middle Islands. He then sailed
northward, passed and named Cape Maria Van Diemen, and made for
the tropics, where he discovered the Tonga Islands. Had Tasman
sailed from Van Diemen's Land northward instead of eastward, he
would have anticipated Cook^s discovery of eastern Australia by one
hundred years. In 1664, the country, whose leading outlines were
yet dimly understood, was named New Holland by the States-General,
and the discoveries of Tasman were proudly inscribed on the map of
the world, cut in stone upon the New Staathaus in Amsterdam.

In 1683, William Dampier, one of a company of bold buccaneers,
started off on a voyage round the world. After passing through
many wild adventures, Dampier obtained the command of a vessel
called the Cygnet, in which he reached the Philippines, and thence he
proceeded on a voyage to New Holland. He reached the west coast
in latitude 16° 50' on 4th January, 1688. In his narrative he said :
*'New Holland is a very large tract of land. It is not yet determined
whether it is an island or a main continent, but I am certain that it
joins neither Asia, Africa or America." Dampier returned to
England on 2nd September, 1691. In 1699, King William III.
organized an expedition for the discovery of unknown lands.
Dampier was placed in command, the name of the ship in which he
sailed being the Roebuck. He reached the coast of New Holland on
4th July, 1699, and on the 1st August his ship struck the Abrolhos
rooks, but escaped being wrecked. A harbour was found, which
proved to be that of Dirk Hartog, who had anchored there in 1616.
To this harbour Dampier gave the name of Shark's Bay. Afterwards
Dampier sailed northward, passing in his course the archipelago which
now bears his name. The coastline traced by him was apparently
sterile and inhospitable. Dampier was the first Englishman who
landed on the shores of New Holland. By some historians he has
been styled the "prince of voyagers'' and "the Cook of a former
age." European writers like Humboldt have borne testimony to his
bravery, his skill, and his genius as a mariner, and to the value and
accuracy of his reports concerning his discoveries. — Blair's History of
Australia (1879), pp. 29-34.

The only voyage of consequence between Dampier's time and
that of Cook was one by Willem de Vlamingh, a Dutch navigator,
who, in 1699, was ordered by his Government to search for the Dutch
ship Bidderschap, which was lost in 1684. In his search along the
west coast, in the Geeliruk, Vlamingh discovered and entered Swan
River.

Cook's Discoveries. — To Captain James Cook, one of Britain's
bravest and most illustrious mariners, was reserved the immortal fame
of commencing and completing a voyage of discovery next in import-
ance to those of Columbus and Magellan, by which he solved the
problem of the Great Southern Continent, discovered and explored
the eastern shores of Australia — or New Holland, as it was then
called — and took possession of it in the name of the British Crown.
The immediate occasion and motive of Cook's first voyage was not a

MODERN COLOXIZATIOX. 27

thirst for gold or empire on the part of the British Government, but
the conduct of a scientific expedition to the island of Otaheite, now
called Tahiti, in the South Sea, for the purpose of observing the
transit of the planet Venus across the sun's disc. On 26th August,
1768, Captain Cook sailed from Plymouth in the Endeavour, a barque
of 360 tons, originally built for the coal trade. The barque was
victualled for an eighteen months' voyage. Among those on board
were Mr. (afterwards Sir) Joseph Banks, President of the Royal
Society ; Mr. Charles Green, Assistant Astronomer ; Dr. Solander, a
Swedish Botanist ; Zackary Hicks, lieutenant ; Robert Molineux,
master ; Charles Gierke, mate ; John Guthrey, boatswain ; Stephen
Forwood, gunner ; John Satterly, carpenter ; William B. Monkhouse,
surgeon ; Richard Orton, clerk. Cook's instructions were to sail to
Otaheite, and after the completion of the astronomical observations
to proceed south as far as the 40th parallel — with a view to ascertain-
ing the existence of the supposed " Terra Australis," or Great Southern
Continent (quite distinct from Xew Holland) which geographers
believed to exist in polar regions — and then to steer westward until
lie reached New Zealand, after which he was to return to England.

The transit of Venus having been successfully observed, Cook
and his party left Otaheite in the Endeavour on 13th July, 1769. He
reached a latitude of 40° 12' without finding the imaginary continent,
and then proceeded westward. After a run of about sixty-eight days,
a lad on board the Endeavour, named Nicholas Young, saw land from
the masthead, which afterwards proved to be the south-west point of
Poverty Bay, New Zealand. That was on 6th October, 1769. Various
parts of the island were visited, and on 10th November, 1769, Cook
took formal possession of the country in the name of King George III.
Having circumnavigated New Zealand and passed through the Straits
which now bear his name, Cook, on 31st March, 1770, sailed from
Cape Farewell towards the west, his plan being to steer westward
until he should reach the east coast of New Holland, and then to
follow the direction of that coast northward. On 18th April,
Lieutenant Hicks caught sight of a projection of land which was
named after him. Point Hicks. The name was subsequently changed
to Cape Everard ; it is situated between Cape Howe and the entrance
to the Snowy River. Proceeding northward, on 28th April, a bay
was discovered and entered, and a landing effected. The name given
to it at the time — as appears from Cook's private log — was " Sting-ray
Harbour;" and its present name of Botany Bay, obviously suggested
by Banks' botanical discoveries, appears for the first time in Dr.
Hawkesworth's embellished narrative of Cook's voyages. See His-
torical Records of N.S.W., Vol. I., p. 161. During his stay in Botany
Bay Cook caused the British flag to be displayed on the shore ; and
the ship's name and the date of his visit were inscribed on one of the
trees near the watering place. On 6th May, 1770, the Endeavour
resumed her voyage northward, and at noon on the same day Cook
observed an opening in the coast which he called "Port Jackson,"
probably in honour of Mr. (afterwards Sir) George Jackson, one of
the Secretaries of the Admiralty. See Historical Records of N.S.W.,
Vol. I., pp. 170-2.

28 HISTORICAL INTRODUCTION.

In the voyage northward all the prominent features of the coast
were noted and named, including- Smoky Cape, Port Macquarie,
Moreton Bay, Cape Capricorn, and other bays and capes. After
skirting the dangerous coast for a distance of about thirteen hundred
miles, the Endeavour narrowly escaped shipwreck by striking some
coral rocks. On 21st October, 1770, Cape York was reached. The
coast was followed in order to determine whether there was a passage
between New Holland and New Guinea. A channel having been
found, it was named Endeavour Straits — a name which has since been
dropped in favour of Torres, the intrepid Portuguese who is supposed
to have first sailed through. Cook landed and took formal possession
of the whole country along which he had coasted. Cook's log, as
" written up " by Hawkesworth, contains the following entry : — " I
once more hoisted PJnglish colours, and though I had already taken
possession of several parts, I now took possession of the whole eastern
coast in right of His Majesty King Greorge III., by the name of New
South Wales, with all the bays, harbours, rivers and islands situated
upon it ; we then fired three volleys of small arms, which were
answered by the same number from the ship. Having performed this
ceremony upon the island we called it Possession Island." — Hawkes-
worth, Voyages, Vol. III., p. 616.

Legend has it that Cook gave this name to the country owing to
a fancied resemblance to the Welsh coast about Swansea. It is re-
markable, however, that neither his official log nOr his private log, nor
any of the journals of the ship's company, mentions the name of New
South Wales. It seems either to have been an after-thought, or to
have originated with Hawkesworth.- See Historical Records of
N.S.W., Vol. I., pp. 169-70.

The first voyage of the Endeavour, and Cook's discoveries, con-
stitute a story full of thrilling interest to Australians. His heroic
services and his great work have not yet been adequately recognized
by those of the British race who now possess and enjoy the glorious
heritage, the Australian continent, which he helped so materially to
bequeath to them. Whilst we are now celebrating the establishment
of the Australian Commonwealth, and rejoicing at the beginning of
a new era of national life which shall give us a more exalted citizen-
ship, and a wider patriotism, let us not forget James Cook and his
courageous comrades, who in a frail barque of 360 tons dared the
storms of two oceans in search of new homes for the unborn
millions of the British race. All honour to the name of Captain
Cook !

Cook's second great voyage was commenced on 13th July, 1772,
in the Resolution, 462 tons burthen ; he was accompanied by Captain
Tobias Furneaux, in the Adventure, 336 tons. The object was to
make further search for the supposed Southern Continent of the
geographers. In this voyage Cook and Furneaux directed their
course towards the South Pole, and penetrated beyond the Antarctic
circle. On 8th February, 1773, the two vessels became separated.
Cook then directed his course to Queen Charlotte's Sound, New
Zealand, the appointed rendezvous. Captain Furneaux followed a
more northerly course, coasted along the southern and eastern shores

jNrODERN COLONIZATION. 29

of Van Diemen's Land, and met Cook at Queen Charlotte's Sound.
Subsequently Cook cruised in the Pacific, visited and named the
New Hebrides group, landed on and named Xew Caledonia, dis-
covered and named Norfolk Island. He returned to England on 30th
July, 1775, after an absence of over three years, having conclusively
proved that no Polar Continent existed in navigable seas. See
Historical Records of N.S.W., Vol. I., pp. 333, 380.

In 1776 Cook commenced his third and last voyage. On this
occasion he was again in command of the Besolution, and was
accompanied by Captain Clarke, in the Discovery, 300 tons. On 26th
January, 1777, he arrived off the coast of Yan Diemen's Land and
anchored in Adventure Bay, which had been so named by Captain
Furneaux. On 30th January the Resolution and Discovery left Yan
Diemen's Land and sailed for New Zealand. Thence they left for
the Society Islands. Cook's tragic death took place at Hawaii, one
of the Sandwich Islands, on 14th February, 1779. His work was
done. Australia, Tasmania and New Zealand were by his labours
for ever secured to the inheritance of the British people.

Projects for Settlement. — The project of a settlement on the east
coast of New Holland seems to have been due to the enthusiastic reports
of Sir Joseph Banks as to the fertility and capacity of the country.
Before a Committee of the House of Commons, appointed in 1779 to
enquire into the question of transportation, he gave evidence that if it
were thought expedient to establish a penal settlement in a distant land,
" the place which appeared to him best adapted for such a purpose was
Botany Bay, on the coast of New Holland." — Barton, History of
N.S.W., Yol. I., p. xlv. The Committee, without recommending any
particular locality, reported in favour of establishing a convict colony
in some distant part of the globe.

The existing laws, however, only authorized transportation to the
colonies and plantations of North America (see the Act 4 George I.
c. 11) ; and as the independence of the American colonies Jiad now been
recognized, further legislation was necessary. Accordingly in 1784
the Act was passed under which the first settlement of Australia took
place, and which is dealt with in Part III. of this introduction.

Mention may here be made of a proposal by an Englishman,
James Maria Matra, to establish in New South Wales a free settle-
ment for the American loyalists who had suffered for their allegiance
to the Crown during the war, and who might wish to remain under
the British flag. This plan, though it received the hearty support
of Sir Joseph Banks, was not favourably received by the Government,
and New South Wales thus missed the opportunity of being founded
as a free and settled colony. — Barton, History of N.S.W., Yol I.,
pp. 1-10.

From Cook to Flixders. — On 20th January, 1788, Captain Arthur
Phillip arrived at Botany Bay with " the First Fleet," consisting of
His Majesty's frigate Siriiis, in command of Captain John Hunter,
accompanied by one armed tender, three store ships, and six trans-
ports, conveying six hundred male and two hundred female prisoners,
a guard consisting of one Major Commandant, three captains of
marines, twelve sub-lieutenants, twenty-four non-commissioned officers.

30 HISTORICAL INTRODUCTION.

and one hundred and sixty-eight privates. There were also among
them forty-two women, wives of the marines, together with their
children. It was found that Botany Bay was not suitable for the
proposed settlement. The ships remained in the harbour whilst
Captain Phillip sailed along the coast in a boat for the purpose of
examining the opening recorded by Captain Cook, and by him named
Port Jackson. It was found to be a noble and beautiful harbour.
In one of its many bays a site suitable for a settlement was selected,
and named ''Sydney Cove" in honour of Viscount Sydney, one of
the members of Pitt's administration. Eeturning to Botany Bay,
Captain Phillip proceeded to make arrangements to send the ships
around to Sydney Cove. Meanwhile two ships, flying the French
colours, appeared on the scene. They proved to be the French
exploring vessels Boussole . and Astrolabe, under the command of
La Perouse ; they came there for wood and water. After delivering
to Captain Phillip despatches to be forwarded to the French Govern-
ment, La Perouse sailed away across the Pacific, and was never again
seen or heard of, but in 1826 traces of his wrecked ship were found
on the island of Vanikoro, near the Fijis. On 26th January the
fleet sailed into Port Jackson. The people were disembarked at
Sydney Cove. The British colours were hoisted. The Eoyal Pro-
clamation and Commission constituting the colony of New South
Wales were read. A salute was fired. The work begun by Cook
was about to bear its fruit in the shape of Australian settlement
and colonization.

In April, 1791, George Vancouver, an English navigator, who
accompanied Captain Cook on his second and third voyages, made
a careful survey of the south-west coast of Australia, in the course
of which he inspected a harbour which he named King George's
Sound in honour of the reigning sovereign.

In 1792, a French expedition, under Admiral Bruni D'Entre-
casteaux in the Recherche, accompanied by Captain Huon Kermadec
in the Eftperance, discovered Recherche Archipelago and Bsperance
Bay, W.A., and then visited the coast of Van Diemen's Land, in
search of the lost La Perouse. They passed through the channel
bearing the name of the Admiral, and sailed up the Huon and the
Derwent.

In 1795 Captain John Hunter arrived in New South Wales, in
the Reliance, to commence his duties as Governor in succession to
Captain Phillip. There came with him two young men whose names
have become honoured by their association with memorable events
in connection with Australian maritime discoveries — Matthew Flinders,
midshipman, and George Bass, surgeon. They afterwards took a
leading part in exploring previously unknown tracts in Australian
waters, and in solving geographical problems of great importance.
On 3rd December, 1797, whilst Flinders was engaged on a surveying
voyage at Furneaux's Islands, Bass, obtaining from the Governor the
use of a whaleboat, a crew of six men, and provisions for six weeks,
started from Sydney, cleared the heads and sailed southwards;
explored the coast, discovered Twofold Bay, passed southward
beyond the great projection of land, now called Wilson's Promontory,

MODERN COLONIZATION. 31

and then proceeded further westward until he discovered the harbour
now known as Western Port. He had entered the channel which
runs between Van Diemen's Land and Australia, though he was not
certain of its continuity. In October, 1798, Flinders, associated with
Bass, sailed from Sydney in a small decked vessel named the
Norfolk, 25 tons; made for Van Diemen's Land; steered along its
northern coast; discovered and entered Tamar heads and anchored
in Port Dalrymple ; rounded the north-west headland (Cape Grim)
and eventually circumnavigated the island, for the first time deter-
mining its insularity. The name of Bass is immortalized in the
Straits, to which, on the recommendation of Flinders, it was given.
In 1799, Flinders was sent by Governor Hunter to explore the
coastline north of Port Jackson. In the sloop Norfolk he proceeded
along the coast, examined Moreton Bay and afterwards went as far
as Hervey's Bay.

On 17th March, 1800, Lieutenant James Grant was sent from
England, in command of the surveying ship Lady Nelson, 60 tons,
for the purpose of exploring the southern coast of Xew Holland.
On rounding the West Australian cape, he shaped his course to
reach Sydney through the Straits discovered by Bass and Flinders,
instead of proceeding via Van Diemen's Land. On 3rd December,
1800, Grant sighted a part of the coast of South Australia, to which
he gave the name of Cape Northumberland. He also sighted and
named other points, including Cape Bridgewater and Cape Otway.
The Lady Nelson was the first ship to pass through Bass Straits
from the westward. Afterwards Grant, in the Lady Nelson, surveyed
the coast between Wilson's Promontory and Western Port. Lieu-
tenant Murray succeeded Grant in command of the Lady Nelson.
On 12th November, 1801, Murray started from Sydney for the pur-
pose of prosecuting a more minute exploration along the south coast.
This voyage resulted in the discovery of an opening between
Western Port and Cape Otway ; it was first seen on 5th January,
1802, but owing to unfavourable weather it could not be entered
for several weeks. It was first inspected in a launch, by Mr.
Bowen, the mate of the Lady Nelson, who entered it on 1st
February. The Lady Nelson was then brought round from Western
Port, and on 15th February passed through the narrow channel.
This proved the gateway to what Murray described as "a noble
harbour," which he named Port King, but the name was afterwards
changed to Port Phillip, in honour of the first Governor of New
South Wales.

At about this time Flinders was on his way back from England
in the flagship Livestigator, 334 tons. He reached Cape Leeuwin
on 7th December, 1801; entered King George's Sound; surveyed
the coast eastward; discovered and named Fowler's Bay, Smoky
Bay, Streaky Bay, Port Lincoln, Spenser's Gulf, Hardwick Bay,
Point Marsden, Nepean Bay, the Gulf of St. Vincent, Yorke Penin-
sula, Mount Lofty, Kangaroo Island, and Backstairs Passage. At
Encounter Bay he came across Commodore Baudin, in command of
the French ship Geographe.

In 1801 a French expedition commenced an exploration of the

32 HISTORICAL INTRODUCTEOK

Australian coast which has left enduring traces of its investigatioiis
on the map of the continent. It consisted of three ships — the
Geographe, the Naturaliste, and the Casurina. It was under the
command of Commodore Baudin and his first lieutenant, M. Freycinet.
They appeared to have examined a part of the west coast of the
continent, and also the eastern coast of Van Diemen's Land, where
they were engaged so long that Flinders, in the Investigator, had
almost completed his survey of the southern coast when Baudin
proceeded to explore from the east to westward. Referring to the
meeting of Flinders and Baudin, Mr. David Blair wrote : " Flinders
subsequently found that the French, by the orders of the Emperor
Napoleon, claimed all the south coast as their discovery, and had
named the various points along it by the names of the emperor and
his courtiers. They even gave the whole territory the name of
Napoleon Land. The officers of the Geographe knew well that all
this was done without warrant, for one of them — M. Freycinet, first
lieutenant to Captain Baudin — said afterwards to Flinders at Sydney
Government House: * Captain, if we had not been kept so long
picking up shells and catching butterflies in Van Diemen's Land,
you would not have discovered the south coast before us.^ It is
but justice to the French people to say that all idea of appropriating
Flinders's discoveries has long since been abandoned by them." — ■
Blair's History of Australia, p. 115.

Flinders proceeded on his voyage eastward, and on reaching
Cape Otway he proceeded to explore the great indentation which
Grant had reported. Flinders then discovered the opening within
which was situated Port Phillip, which he entered on 27th April,
1802, without having any knowledge of its having been previously
(15th February, 1802) entered by Lieutenant Murray. " Strangely
enough," wrote Dr. Lang, " Port Phillip was afterwards discovered,
on 30th March of the same year, by Captain Baudin, of the French
expedition; and again, on the 27th April following — all indepen-
dently— by Captain Flinders; but the honour of the discovery is
unquestionably due to Lieutenant Murray, who had preceded
Captain Baudin six weeks and Captain Flinders ten." — History of
New South Wales, p. 82. After quitting Port Phillip, Flinders
proceeded on his journey to Sydney, which he reached on 9th May,
1802. On his arrival there, he found the French ship Naturaliste
in the harbour, to the commander of which, Captain Hamlin, he
showed his charts of the coast between Cape Nuyts and Encounter
Bay. — Blair's History of Australia, p. 116.

In 1802, Governor King despatched Surveyor-general Grimes
in the Cumberland to examine Port Phillip and to warn off Com-
modore Baudin, who was known to be in the neighbourhood, with
the Geographe and the Naturaliste, and meditating annexation of
the south coast for the French Government. Grimes fell in with
Baudin on 8th December at King's Island. Grimes delivered his
despatches to Baudin, and after exploring King's Island he entered
Port Phillip and proceeded to examine its coast line. On 2nd Feb-
ruary, 1803, he ascended the Yarra. He was the first white man
who trod the destined site of the city of Melbourne.

MODERN COLONIZATION. 33

The Name "Acstralia." — The continent of Australia was not
yet known by that name. It was usually described, either by the
old name, " Terra Australis/' given by the geographers, or by the
Dutch designation of " New Holland." In 1606 de Quiros gave to
an island in the New Hebrides, which he believed to be part of the
Great Southern Continent, the name of " La Austrialia del Espiritu
Santo" (seep. 24 supra). De3rosses, in his Histoire des Navigations
aux Terres Australes (1756), coined the name *' Austral- Asia " to
describe the islands in a part of the South Pacific. The word
^"^ Australia " seems to have been first used by Dalrymple, in his
Collection of Yoyages in the South Pacific, published in 1770, when
Cook was actually in Australian waters. Dalrymple, however,
applied the name, not to New Holland alone, but to " all the lands
and islands to the westward of South America." The application of
the word " Australia " to the Continent seems to have been first
suggested by Matthew Flinders in 1814, and in about 1820 it came
into general use. — Barton, History of N.S.W., vol. 1, pp. 86-93.
In 1829 it first appeared in the Imperial Statute Book in the
Act 10 Geo. lY. c. 22, which made legal provision for the
settlement of ''Western Australia, on the western coast of New
Holland."

Greater Britain. — The limits of our space will not permit us
to trace the progress of exploration and settlement along the shores
and through the interior of Australia during the first century of its
history. We can only present a brief sketch of the beginning and
gradual development of Provincial Government in each colony
leading up to the movement in favour of federal union. We bring
to a close our review of the progress of British colonization with a
few general observations on the relations of British colonies to the
empire of which they form a part. The people of Australia are in
the undisputed enjoyment and possession of one of the fairest
countries beneath the sun, with all the rights and privileges of free
institutions, political equality and local self-government. They are
now entering upon that higher act of political union, at all times
contemplated, with the inestimable advantage of forming an integral
part of the British Empire. That Empire is much vaster in
dominion, much richer and more populous than when Great Britain
lost the United States. " The sun of England " has not set for
ever. It shines brighter than ever ; brighter by reason of the pass-
ing away of political darkness, misgovernment, corruption, and
despotism; brighter by reason of the enlightened views of her
statesmen and the enfranchisement of her toiling masses ; brighter
by reason of the democratic constitutions which have been granted
to her colonies and dependencies in all parts of the earth. The red
line of British frontier has been creeping in advance of all the
other national colours on the map ; stretching into distant " regions
Caesar never knew." But in all this the policy of the nation has
been colonization, not conquest ; the planting of people on the soil,
and enabling them to build homes for themselves and reclaim the
wilderness from the savage for their own benefit and the comforts
and delights of existence ; not for the glorification of princes, or

34 HISTORICAL INTRODUCTION.

the enrichment of families in Europe, as was the case in the
Spanish and French systems.

Consider for a moment the vast magnitude, the enormous
wealth, and the surprising population of the British Empire at the
present time. There are about 56 colonies and dependencies recog-
nizing the sovereignty of the Queen. The area at home and abroad
amounts to 11,712,171 square miles; the coast line of this area
exceeds in length the entire circumference of the earth, being
28,500 miles; the total annual public revenue of Great Britain and
her colonies and her dependencies for the year 1897-8 was
£256,452,167; the annual value of exports £515,730,000, and im-
ports £746,407,484 ; the population was 385,280,140. Such is the
majestic fabric of the British Empire of to-day, of which Daniel
Webster, the American orator, said so long ago as May, 1834, that
she was the '^ power which dotted the surface of the whole globe
with her possessions and military ^iposts, whose morning drum-beat,
following the sun and keeping company with the hours, circles the
earth with one continuous and unbroken strain of the martial airs
of England.'^

From the contemplation of these facts we can, to some extent,
realise the greatness of the birth-right which has descended to us
through the labours, the enterprise, the patriotism, and the sacrifices
of the pioneers of British colonization, and the builders of the
British Empire.

COLONIAL GOVERNMENT IN AUSTRALIA. 35

F^RT III.
COLONIAL GOVERNMENT IN AUSTRALIA.

(1) NEW SOUTH WALES.

Earliest Statutory Authority. — In 1784 the Imperial Parlia-
ment passed the statute, 24 Geo. III. c. 56, intituled " An Act for
the effectual transportation of felons and other offenders, and to
authorize the removal of prisoners in certain cases, and for other
purposes therein mentioned." This law empowered the King, with
the advice of the Privy Council, to appoint places to which felons
might be transferred. By an Order in Council bearing date 6th
December, 1786, His Majesty's "territory of New South Wales
situated on the east part of New Holland " was appointed a place
for the reception of persons within the meaning of the Act.

By letters patent and commission dated 2nd April, 1787, Captain
Arthur Phillip was appointed Governor and Vice-Admiral of the
territory. It was declared that the limits of his authority extended
" From the north cape or northern extremity of the coast called
Cape York, in latitude of 10° 37' south, to the south cape or southern
extremity of the coast in latitude of 43" 39' south, and inland to the
westward as far as 135" east longitude, reckoning from the meridian
of Greenwich ; including all the islands adjacent in the Pacific
Ocean within the latitudes aforesaid." The western or inland
boundary was afterwards (1827) extended to the 129tli meridian.
The Governor was empowered to make orders for the good govern-
ment of the settlement. In the shape of ordinances, he created
offences and crimes previously unknown to the law; he made regu-
lations; he modified tlie application of the law of England in matters
relating to police, tolls, and convict labour. His legislative powers
were assumed to be founded on and justified by the prerogatives of
the Crown. There is now reasonable ground for entertaining a
doubt whether the Crown had authority to delegate such a power to
the Governor. — Mr. Commissioner Bigge's Report (1823), p. 10;
Bentham's Plea for the Constitution, IV., p. 255-60; Webb's Imperial
Law, p. 25.

The Judicial authority necessary for the government of the new
settlement was derived partly from statute and partly from preroga-
tive, similarly assumed to exist. The Act 27 Geo. III. c. 2, intituled
"An Act to enable His Majesty to establish a Court of Criminal
Jurisdiction on the eastern coast of New South Wales and the parts
adjacent thereto," authorized the Crown by letters patent to erect
a criminal court for the trial and punishment of treasons, felonies,
and misdemeanours. This court, which was similar in its constitution
to a court of Admiralty in its criminal jurisdiction, was composed of
a Judge-Advocate and six naval or military officers to be selected
by the Governor. There was thus ample statutory authority for

36 HISTORICAL INTRODUCTION.

the administration of criminal law according to a procedure suitable
enough, perhaps, for a penal settlement, but not for a free com-
munity. There was no statutory authority whatever for the creation
of civil courts. The Imperial authorities seem to have considered
that the Crown, in the exercise of its prerogative, could constitute
civil courts. By letters patent, dated 2nd April, 1787, the Crown
created a court of civil jurisdiction having power to deal in a sum-
mary way with personal actions and probate and administration
proceedings "according to the law of England." The civil court
was presided over by the Judge-Advocate and two inhabitants of
the settlement, appointed by the Governor. This civil procedure
continued 'in operation until 4th February, 1814, when fresh letters
patent were issued, formulating a new plan of administration, by
which the civil and criminal jurisdictions, previously united in the
Judge-Advocate, were separated. A primary civil court, presided
over by the Judge- Advocate and two inhabitants appointed by the
Governor, was established and endowed with jurisdiction in personal
actions in which the amount involved did nob exceed £50. A
Supreme Court, presided over by a Judge and two magistrates, was
erected and clothed with jurisdiction in personal actions in which the
amount involved exceeded £50, and with general jurisdiction in
equity, probate, and administration matters. Eminent jurists are
now of opinion that these civil courts were established by the Crown
without any constitutional authority. The legislative power exercised
by the Governor is also believed to have been equally unconstitu-
tional.— Webb's Imperial Law, p. 24.

The Governor was endowed with almost absolute power. His
rule was a despotism, tempered by his own discretion and by the
knowledge that he was liable to be called to account by the Imperial
authorities for any maladministration. His oath of office principally
required him to olsserve the law relating to trade and plantations. —
Jenks' Government of Victoria, p. 11. Such was the legal authority
under which, on 26th January, 1788, a penal settlement was estab-
lished and for many years afterwards maintained at Sydney Cove.
It was not at first intended to be a colony or plantation within the
ordinary meaning of those terms, viz., for the purpose of trade and
cultivation. — Clarke's Colonial Law, p. I. Lubbock v. Potts^ 7 East
449. Webb's Imperial Law, p. 12.

By the Acts 59 Geo. III. c. 114, 1 and 2 Geo. IV. c. 8, and
3 Geo. IV. c. 96, the Governor of New South Wales was given
limited powers to impose local taxation in the shape of Customs
duties on spirits, tobacco and other goods imported into the colony.

A Rudimentary Charter. — The temporary Act 4 Geo. IV. c. 96
(1823), which became law during the governorship of Sir Thomas
Brisbane, was the first legislation passed by the Imperial Parliament
conferring anything like the rudiments of local self-government on
the New South Wales community. It was intituled "An Act to pro-
vide until the 1st day of July, 1827, and until the end of the next
session of Parliament, for the better administration of justice in New
South Wales and Van Diemen's Land, and for the more effectual
government thereof ;" but it went a little beyond its title. The old

COLONIAL GOVERNMENT IN AUSTRALIA. 37

Military Courts of 1787 were abolished, and a Supreme Court and
Court of Appeal, on something like the English model, were authorized
to be erected. The Crown was empowered to create, by warrant, a
Council consisting of from five to seven persons charged with certain
legislative powers of a limited character. They were to be appointed
during the pleasure of the Crown ; they could advise but not overrule
the Governor in matters of legislation, and all laws and ordinances
passed with their approval were required to be laid before the British
Parliament. On 1 7th May, 1824, a charter of Justice, bearing date
13th October, 1823, was promulgated, creating the Supreme Court of
New South Wales, and appointing Francis Forbes, Esq., to be the first
Chief Justice. On 1st December, 1823, five persons were appointed
members of the Council, consisting of the principal Grovernment
officials, viz., the Lieutenant-Governor, the Chief Justice, the Colonial
Secretary, the Principal Surgeon, and the Surveyor-General for the
time being. On 17th July, 1825, the Council was re-constituted and
increased to its full number of members, including three private
persons, residents of the colony.

Up to the passing of the Act 4 Geo. lY. c. 96 (1823), Van
Diemen's Land was a dependency of New South Wales. By sec. 24
of that Act the Crown was authorized to proclaim Van Diemen's Land
a separate colony independent of New South Wales. The history of
New South Wales and Van Diemen's Land (afterwards Tasmania), as
constitutional colonies, begins with the Act 4 Geo. IV. c. 96, which
was their first charter of Government.

The Act 9 Geo. IV. c. 83 (25th July, 1828), intituled '' An Act
for the Administration of Justice in New South Wales and Van
Diemen's Land, and for the effectual government thereof," was the
second constitutional charter of Australia. It was passed during the
governorship of Lieutenant-General Sir Ralph Darling. It re-enacted
the main provisions of the temporary measure and made better pro-
vision for the administration of justice. The civil and criminal juris-
dictions of the courts were amended and improved, power being given
to the respective Legislative Councils to introduce trial by jury in all
criminal cases. It contained the well-known section (24), which
enacts " That all laws and statutes in force within the realm of Eng-
land at the time of the passing of this Act (not being inconsistent
herewith, or with any charter, or letters patent, or Order in Council,
which may be issued in pursuance hereof), shall be applied in the
administration of justice, in the courts of New South Wales and Van
Diemen's Land respectively, so far as the same can be applied within
the said colonies ; and as often as any doubt shall arise as to the
application of any such laws or statutes in the said colonies respectively,
it shall be lawful for the Governors of the said colonies respectively,
by and with the advice of the Legislative Councils of the said colonies
respectively, by ordinances to be by them for that purpose made, to
declare whether such laws or statutes shall be deemed to extend to
such colonies, and to be in force within the same, or to make and
establish such limitations and modifications of any such laws and
statutes within the said colonies respectively, as may be deemed
expedient in that behalf."

38 HISTORICAL INTRODUCTION.

Another interesting and important section of this Act was sec.
20, in which it was recited that "it may be necessary to make laws
and ordinances for the welfare and good government of the said
colonies of New South Wales and Van Diemen's Land, and the
dependencies thereof, the occasions of which cannot be foreseen,
nor without much delay and inconvenience provided for, without
entrusting that authority for a certain time, and under proper
restrictions, to persons resident there." It was also recited that "it
is not at present expedient to call a Legislative Assembly in
either of the said colonies." It then proceeded to enact " That it
shall and may be lawful for His Majesty, his Heirs and Successors,
by warrants under his or their sign manual, to constitute and
appoint in New South Wales and Van Diemen's Land respectively, a
Council, to consist of such persons resident in the said colonies
respectively, not exceeding fifteen nor less than ten, as His Majesty,
his Heirs and Successors, shall be pleased to nominate."

The Governors of the colonies of New South Wales and Van
Diemen's Land, with the advice of the Legislative Councils so
created, were authorized "to make laws and ordinances for the
peace, welfare, and good government of the said colonies respectively,
such laws and ordinances not being repugnant to this Act, or to any
charter or letters patent or Order in Council which may be issued
in pursuance hereof, or to the laws of England." This included
certain limited powers of levying customs and excise taxation for
local purposes, but it conveyed no control over the waste lands of
the Crown. No proposed law could be passed by either of these
Councils unless it was first laid before such Council by the Governor
of the colony. The members of these legislative bodies held their
seats at the pleasure of the Crown, and they had no control over
the administration, which was exclusively vested in the Governor.

At this time the official staff of the New South Wales Govern-
ment consisted of a Chief Justice, an Archdeacon, a Colonial Secretary,
an Attorney-General, a Collector of Customs, an Auditor-General, a
Principal Surgeon, and a Surveyor-General. These appointments
were made by the Imperial Government, During this period Ave
find some of the earliest traces of a colonial Executive Council, a
body which subsequently acquired in the Australian colonies a position
analagous to that of the Privy Council in England. In the Commis-
sion appointing Sir Richard Bourke Governor of New South Wales
{25th June, 1831), he was authorized to nominate an Executive
Council. This Council consisted of such of the leading government
officials as the Governor thought fit to consult with in matters of
local administration. — Jenks' Government of Victoria, p. 17.

First Reprksentative Legislature. — The third important charter
regulating the Government of New South Wales was 5 and 6 Vic.
c. 76 (30th July, 1842), passed during the Governorship of Sir George
Gipps. It was intituled " An Act for the Government of New South
Wales and Van Diemen's Land," but it principally concerned, and
was for the benefit of, New South Wales. The Legislative Councils
established by previous Acts were purely nominee and irresponsible
bodies. This Act established, for the first time in Australia, a legis-

COLONIAL GOVERNMENT IN AUSTRALIA. 39

lature partly, but not wholly, representative in its character. It was
enacted that there should be within the colony of Xew South Wales
a Leo-islative Council to consist of 36 members, 12 of whom were to
be appointed by Her Majesty and 24 elected by the inhabitants of
the colony. The Governor with the advice and consent of the Coun-
cil was authorized to make laws for the peace, welfare and good
government of the colony, including the power to impose duties of
customs, provided that such laws were not to be repugnant to the
law of England ; nor were they to interfere with the sale or appro-
priation of lands belonging to the Crown or with the revenue arising
from the same. Bills imposing duties of customs had to be reserved
for the Queen's assent. The Council was to be presided over by a
Speaker elected by itself. There was to be a session of the Council
once every year, and every Council was to continue for five years
from the day of the return of the writs and no longer, subject to
be sooner dissolved by the Governor. Power was given to the
Governor to establish, by letters patent, district Councils for the
purpose of carrying on local government in such counties or other
divisions of the colony as he might deem fit. Elective members of
the Council were required to be the o\vners of freehold land of the
clear annual value of £100, or of the capital value of £2,000. They
had to be chosen by the votes of electors being owners of freehold
land of the clear capital value of £200, or householders occupying
dwellings of the clear annual value of £20. This Act also contained
provisions relating to the giving or withholding by the Governor of
the Royal assent to Bills passed by the Council, the disallowance of
Bills assented to by the Governor, and the assent to Bills reserved
by the Governor, and enacting that the Queen, by the advice of the
Privy Council, or through one of her principal Secretaries
of State, might convey instructions to the Governor for his guid-
ance.

This Act did not grant to New South Wales the system known
as Responsible Government. The Governor was still his own prime
minister, and the heads of the Departments and other public officers
still continued to receive and hold their appointments from the
Crown ; their tenure of office depended, not on their possession of
the confidence of the Legislative Council, but on the pleasure of the
Crown represented by the Governor. Although it was only a half
measure and an instalment of political freedom, it marked the dawn
of a new system. It contained the feeble germs of Representative
Government, whence has since sprung the splendid fabric of the
Parliamentary institutions in Australia. It was the first concession
made by enlightened British statesmen to the growing wealth and
importance of the Australasian colonies. Limited as were the pro-
visions of this Constitutional Act, meagre as were the liberties con-
ferred, it was nevertheless drawn on lines capable of development
and expansion with the growing wants and aspirations of the young
community. The Council was built partly on the representative
principle, and the qualified electors of the colony had the predomi-
nant power of .constituting twenty-four members, as against twelve
nominated by the Crown. The new Council was opened by Sir

40 HISTORICAL INTRODUCTION.

George Gipps on 1st August, 1843, and among the electire members
were — William Charles Wentworth and William Bland, for the city
of Sydney; John Danmore Lang, Charles Nicholson, Thomas Walker,
among the members for the District of Port Phillip (now Victoria) ;
Charles Cowper, Richard Windeyer, George Robert Nichols.

The next important charter of Representative Government in
Australia was 13 and 14 Vic. c. 59 (5th August, 1850) intituled
" An Act for the better government of Her Majesty's Australian
colonies," and commouly known as the Australian Colonies Govern-
ment Act. The Bill, of which this Act was the outcome, was first
introduced into the House of Commons in June, 1849. The two main
objects of the Act were the separation of the Port Phillip District
from New South Wales, and the establishment in all the colonies of
an improved system of Provincial Government. The Legislative
Council, erected in New South Wales by the Act of 1842, was not
materially disturbed. Its powers were in some respects increased,
and the franchise on which its representative members were elected
was liberalized.

The Governor and Legislative Council of New South Wales
were empowered to increase the number of members of that body,
subject to the condition that one-third of its members were to be
nominated by Her Majesty and the remaining members to be elected
by the inhabitants of the colony. The property qualification of .
electors was reduced in the case of freeholders from £200 to £100,
capital value, and in the case of occupiers of dwellings from £20 to
£10 per annum. The qualification of members remained as under
the Act of 1842.

Two new powers were conferred on the Governor and Legislative
Council by this Act, which they did not possess by the Act of 1842.
The Governor, with the advice of the Council, was authorized to
impose and levy duties of Customs on the importation of goods,
wares and merchandise imported into the colony from any part of
the world, subject to the limitation that no differential duties could
be imposed (sec. 27). There was no provision requiring Customs
Bills to be reserved for the Queen's assent ; and all doubts whether
such reservation was still necessary were afterwards removed by the
declaratory Act 29 and 30 Vic. c, 74. Power was given to the
Governor and Legislative Council, in common with the Governors and
Legislative Councils of .the other Australian colonies, to alter the
qualifications of electors and of members as fixed by the Act, or to
establish, instead of the Legislative Council, a Council and a House
of Representatives, or other separate legislative Houses, to be ap-
pointed or elected by such persons and in such manner as should be
determined, and to vest in such Houses the powers and functions of
the old Legislative Council, provided that such Bill should be reserved
for the signification of the Queen's pleasure (sec. 32). The Council
was still unable to pass laws repugnant to the law of England or
relating to the sale and appropriation of the waste lands of the Crown,
which continued to be dealt with under Imperial Legislation (sec. 14).
The Act 13 and 14 Vic. c. 59 was forwarded by Earl Grey to
Governor Fitzroy, accompanied by a despatch dated 30th August,

COLONIAL GOYERNMENT IN AUSTRALIA. 41

1850, in which the Secretary ot State explained the views of the
Home Government. The Act reached the colony on 11th January,

1851, and was immediately proclaimed. In June following Governor
Fitzroy received a commission under the Great Seal appointing him
Captain-General and Governor-General of all Her Majesty's Aus-
tralian possessions; a commission appointing him Governor of New
South Wales ; and three separate commissions appointing him
Governor of the colonies of Van Diemen's Land, South Australia and
Victoria respectively ; also commissions for the appointment of Lieu-
tenant-Governors of Van Diemen's Land, South Australia and Victoria,
together with warrants delegating to the Governor of Xew South
Wales and the Lieutenant-Governors of the other colonies the power
to nominate non-elective members of their respective Legislative
Councils. Each commission was accompanied by royal instructions.

On 8th April, 1851, the Legislative Council of New South Wales,
under the leadership of Mr. W. C. Wentworth, adopted a report of
its select committee, which protested against the new Constitution
Act on the grounds that it did not place the control of all revenue
and taxation entirely in the hands of the Colonial Legislature ; that
all offices of trust and emolument should be filled by the Governor
and Executive Council, unfettered by instructions from the Secretary
of State for the Colonies ; and that plenary powers of legislation
should be conferred on the Colonial Legislature. It concluded by
" solemnly protesting against these wrongs, and declaring and insist-
ing on these our undoubted rights ; we leave the redress of the one
and the assertion of the other to the people whom we represent and
the legislature which shall follow us." — Tregarthen's Australian
Commonwealth (1893), p. 139.

An Electoral Bill for New South Wales was passed increasinor
the number of members of the Council from 36 to 54, of whom 36
were to be elective members and 18 nominee members. An Elec-
toral Bill for Victoria was passed providing that the Legislative
Council of that colony should consist of 30 members, 10 nominated
by the Crown and 20 elective.

Demand for Responsible Government. — A new election of the
Legislative Council of New South Wales, on the liberalized fran-
chise, then took place. The newly-constituted Council affirmed the
opinion of its predecessor and passed a resolution that it was "pre-
pared upon the surrender to the Colonial Legislature of the entire
management of all our revenues, territorial as well as general, in
which we include mines of every description, and upon the estab-
lishment of a constitution similar in its outline to that of Canada,
to assume and provide for the whole cost of our internal govern-
ment, whether civil or military." In a despatch addressed to
Governor Fitzroy, dated 15th December, 1852, Sir John Fakington,
the Secretary for the Colonies, stated that Her Majesty's Govern-
ment had been greatly influenced by the considerations arising from
the extraordinary discoveries of gold in the Australian colonies,
which had imparted new and unforeseen features to their political
and social conditions. Such a state of affairs had no parallel in
history, and in all human probability there would be an advance in

42 HISTORICAL INTRODUCTION.

the population, wealth and material prosperity, with a rapidity un-
precedented. Her Majesty's Government had further observed with
satisfaction the general order and good conduct which distinguished
the behaviour of the multitudes attracted to the gold deposits, and
they were also bound to recognize the firmness and good judgment
of the local authorities. With this evidence before them Her Majesty's
Government could not but feel that, whilst it was more urgently
necessary than before to place the full power of self-government in
the hands of the colonies, it was equally plain that the extraordinary
increase in wealth and prosperity testified to their fitness to regulate
their own affairs. In reply, therefore, to the desire expressed by
the Legislative Council of New South Wales in favour of a Consti-
tution similar in its outlines to that of Canada, it was the wish of
Her Majesty's Government that there should be established, in each
colony, a new legislature on the basis of an Elective House and a
Legislative Council nominated by the Crown or appointed subject to
the approval of the Crown. Upon the receipt of such a constitutional
enactment, framed by the existing Councils, with civil lists for the
payment of salaries of permanent oJSicers attached, the Imperial
Government would undertake forthwith to propose to Parliament such
measures as would be necessary to carry into effect the entire arrange-
ment, viz. : — (1) By the repeal of the Land Sale Act, under which the
sale of lands was vested m the Imperial authorities, and could not be
regulated by colonial legislatures ; and (2) by the requisite alteration
in the Constitutional Act of 1850 with the schedules annexed thereto.
It was added that the civil lists should provide permanent appropria-
tion for the maintenance of the salaries of the principal officers of
Government, such as the Governor, heads of departments, judges, &c.
" It is my wish," concluded Sir John Pakington, " that the change
should be speedily and satisfactorily effected."

The New Constitution. — On the receipt of Sir John Pakington's
despatch a committee was appointed by the Council to draft a Consti-
tution. Of that committee Wentworth was one of the leading spirits.
By the terms of the Enabling Act 13 and 14 Vic. c. 59 s. 32, the
Governor, with the advice of the Legislative Council, had been
authorized to establish in the colony, instead of the Legislative Coun-
cil, a Council and a House of Representatives, or other separate
Legislative Houses, to consist of such members to be appointed or
elected by such persons and in such manner as might be determined,
and to vest in such Houses the. powers and functions of the Legislative
Council for which the same were substituted. The Select Committee
appointed to frame a new Constitution were not contented to establish
a bi-cameral legislature capable of exercising only the powers and
functions of the old Council. They considered it necessary that the
new legislature should have " increased powers and functions;" and
the Bill drafted by them was designed to confer on the new legislature
increased powers and functions. In so doing the framers of the Con-
stitution acted in excess of the authority conferred by section 32, and
they ran the risk of the Royal assent being refused. This was what
actually occurred to the first Constitution framed by the Legislative
Council of South Australia. Nevertheless the leaders of political

COLONIAL GOVERNMENT IN AUSTRALIA. 43

thought in Xew South Wales, believing that the measure of power
granted by the Constitutional Act of 1850 was not sufficient to meet
the requirements of the colony, proposed that the new legislature
should have an express and enlarged grant of powers and functions,
without reference to the limitations of the Act of 1850.

The opening section of the Bill provided that there should be,
m place of the Legislative Council then subsisting, a Legislative
Council and a Legislative Assembly, and that Her Majesty should
have the power, by and with the advice and consent of the said
Council and Assembly, to make laws for the " peace, welfare and
good government of the said colony in all cases whatsoever.^' Mem-
bers of the Legislative Council were to be nominated by the Governor
with the advice of the Executive Council. The first nominees were
to hold their seats for five years only, but subsequent nominees were
to be appointed for life. The members of the Assembly were to be
chosen by the electors upon the franchise prescribed in the Bill.
Section 45 specially enabled the legislature so constituted to impose
and levy duties of Customs. Section 47 provided that all revenue
should form a consolidated fund to be appropriated by the legisla-
ture in the manner directed. Two other sections conferred power to
amend the Constitution, subject to certain conditions; another section
declared that, subject to provisions therein contained, the legislature
could make laws regulating the sale and disposition of the waste
lands of the Crown. The final section stipulated that the Bill should
not have any force or effect until inconsistent Imperial Acts were
repealed and the entire management and control of the waste lands
of the colony were vested in the proposed legislature. These grants
of powers may be thus summarized : —

1. To make laws in and for New South Wales in all cases

whatsoever.

2. To impose taxation, including duties of Customs.

3. To appropriate revenue.

4. To legislate concerning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly

subject to certain conditions.
Accompanying these grants there were certain restrictions : —

1. That duties were not to be levied on supplies for Her

Majesty's land and sea forces.

2. That no fiscal and commercial laws should be passed in-

consistent with treaties concluded by Her Majesty with
any foreign power.

3. That no differential or preferential duties of Customs should

be imposed.

4. That all Bills for appropriating any part of the public

revenue or for imposing any new rate, tax or impost
should originate in the Legislative Assembly.

5. That it should not be lawful for the Assembly to originate

or pass any vote, resolution or Bill for the appropriation
of any part of the "consolidated revenue fund to any pur-
pose which should not have been first recommended by a
message of the Governor to the said Assembly.

44 HISTORICAL INTRODUCTION.

The Bill contained provisions relating to electoral matters ; re-
specting the assent of the Governor to Bills, and the disallowance of
Bills by Her Majesty ; also respecting the boundaries of the Aus-
tralian colonies. Another section of some significance was one which
provided that the appointment to all public ofiices, whether salaried
or not, should be vested in the Governor, with the advice of the
Executive Council, " with the exception of the appointments of the
officers liable to retire from office on political grounds as hereinafter
mentioned, which appointments shall be vested in the Governor
alone."— Sec. 37.

On 21st December, 1853, the new Constitution was adopted by
the Council and transmitted to the Secretary of State for the
Colonies. As it contained provisions in excess of the power con-
ferred by 13 and 14 Vic. c, 59 s. 32, the Bill could not receive the
Royal assent. It was decided by the Imperial Government to strike
out the clauses relating to the reservation and disallowance of Bills.
In that amended shape it was made a schedule to a Bill introduced
into the Imperial Parliament, entituled "A Bill to enable Her
Majesty to assent to a Bill, as amended, by the legislature of New
South Wales to confer a Constitution on New South Wales and to
grant a civil list to Her Majesty.^' Section 2 of this Bill conferred
on the Parliament of New South Wales the entire management and
control of the waste lands of the Crown; section 3 preserved the
provisions of former Acts respecting the allowance and disallowance
of Bills ; section 4 preserved to the Parliament of New South Wales
the power to make laws amending the Constitution, subject to the
provisions contained therein; section 5 declared that the whole water-
course of the river Murray from its source to the eastern boundary of
South Australia should be deemed to be within the territory of New
South Wales. In this shape the Bill was passed by the Imperial
Parliament and received the Royal assent on 16th July, 1855. Its
number is 18 and 19 Vic. c. 54, and it is now known as the New
South Wales Constitution Statute, whilst the Act contained in the
Schedule is known as the New South Wales Constitution Act.

The Act conferring a Constitution on Victoria was assented to on
the same day. These Acts were transmitted to the respective colonies,
accompanied by explanatory despatches from the Secretary of State,
Lord John Russell, in which the Governors were instructed as to the
introduction of Responsible Government.

Responsible Government. — "That great change in our colonial
system which is known as the introduction of Responsible Govern-
ment was," wrote Dr. Hearn, " effected solely by a despatch from a
Secretary of State. This despatch did not even affect the legal tenure
of colonial offices ; it merely described the circumstances in which the
Crown would exercise its right of displacing at its pleasure certain
classes of its servants. In the body of the Act, for example, which
conferred upon Victoria its present form of government " (and these
remarks apply equally to the New South Wales Act) ''the words
Responsible Minister, or any equivalent terms, never once occur.
Were it not for a marginal note, which forms no portion of the Act,
not even a hint would be given by this statute of the important

COLONIAL GOVERNMENT IN AUSTRALIA. 45

changes Avhicli it was intended to effect." — Hearn's Government of
England, pp. 8-9.

Sir Richard G. Baker, President of the Legislative Council of
South Australia, has expressed a similar opinion as to the method and
circumstances in which Responsible Government was introduced into
the colonies. " It is evident," he writes, " that the enormous power
exercised by the Ministry rests on a very small legal basis, and it is
curious to note that this system of Responsible Ministry, that is, of
advisers, theoretically responsible to the Governor and constitutionally
and practically responsible to the Parliament, was introduced into
Australia simply in pursuance of a few words contained in a despatch
of Sir R. Peel to one of our colonial Governors, and that it was
originally introduced into Canada simply in pursuance of a conversa-
tion between Sir Francis Head and a Secretary of State for the
Colonies." — Notes on the Constitution of South Australia, " Adelaide
and Vicinity," p. 27.

The theory maintained by Dr. Heam, and by Sir Richard Baker,
has not been concurred in by all the leading constitutional authorities.
Mr. George Higinbotham (afterwards Chief Justice of Victoria) held
the view, duringf his official career as Attornev-General of Victoria,
that the existence of Responsible Government in a constitutional
colony was dependent, not upon instructions to the Governor, but on
the statute law under which the Constitution was established in such
colony. These principles he afterwards affirmed judicially in the
great constitutional case of Ah Toy r. Musgrove (1888), 14 V.L.R. p.
349. In his opinion the Imperial statute law was the sole source of the
public rights of every dependency of the British Crown possessing
powers of internal self-government. Those rights could not be legally
derived from the commission and instructions issued by the Crown to
successive Governors of a colony. The commission and instructions
were issued to the Governor by Her Majesty on the advice of her
Imperial Ministers, and the powers and commands contained in those
instruments were as revocable as they were grantable by the
Sovereign. — Id. p. 379. It was in the Constitution Acts and other
Imperial legislation applicable to the colonies that the system of
Executive administration, generally described as Responsible Govern-
ment, could alone be found. The increased powers of legislation
conveyed to New South Wales, Victoria, and the other colonies, in
and by their Constitution Acts, necessitated the far greater change
introduced by the same Acts into the system of government by the
application to the enlarged functions of government of the new prin-
ciple of Ministerial responsibility. Mr. Higinbotham did not acquiesce
in the contention of Dr. Hearn and other learned constitutional jurists,
that Responsible Government could not be found in the Constitution
Acts of such colonies as New South "Wales and Victoria. On the
contrary, he was able to find in those constitutional charters abundant
evidences of the intention of their framers, ratified by the Imperial
Parliament, to establish such a plan of Executive Government.

It was true thnt in those Constitutions the Cabinet was not
mentioned; that the expression "Responsible Ministers" occurred
only in the marginal note — which formed no part of the law — annexed

46 HISTORICAL INTRODUCTION.

to one of the sections of the Victorian Constitution (sec. 18) ; that
mention was made of the Executive Council^ but nothing' Avas said
about its legal constitution or personal composition; that the nature
of Responsible Government was nowhere described ; that the extent
of its application was nowhere expressly declared. But the Chief
Justice considered that in sec. 37 of the Constitution Act of Victoria,
which was drawn on exactly the same lines as sec. 37 of the Constitu-
tion Act of New South Wales, there were provisions which assumed,
if they did not originate, the operation of some plan of Ministerial
Government. Both those sections declared that ''The appointment
of all public oflfices hereafter to become vacant or to be created,
whether such offices be salaried or not, shall be vested in the Governor
with the advice of the Executive Council, with the exception of the
appointments of the officers liable to retire from office on political
grounds, as hereinafter mentioned, which appointments shall be
vested in the Governor alone." The Constitution Acts of South
Australia, Queensland, and Western Australia contained substantially
similar sections. But sec. 18 of the Constitution Act of Victoria, and
sec. 32 of the Constitution Act of South Australia — amended and
enlarged by subsequent legislation — contained provisions which caused
those Constitutions to go much further in the direction of express
recognition and actual introduction than anything in the Constitution
of New South Wales. Those sections enacted that a certain number
of the officers of the Governments in those colonies, for the time
being, should be members of the Parliaments created by the new Con-
stitutions. The requirement of the presence in Parliament of a certain
number of Ministers in charge of public departments has been gener-
ally looked upon as one of the leading features of Responsible Govern-
ment ; their presence in the parliamentary arena brings them into
personal contact and direct communication with the representatives of
the people, who may there interrogate them on questions of public
interest and express their approval or disapproval of the manner in
which those Ministers conduct the government of the country.

" These provisions most plainly, in my opinion, though indirectly,
give adequate expression to an intention of the Legislative Council
that the principle of Responsible Government should be established
by law. In contrast with this power of appointment of responsible
officers which is vested ' in the Governor alone,' all other powers and
functions are vested either in the Governor, or in the Governor and
Executive Council (sees. 49, 51, and 53), or in the Governor with the
advice of the Executive Council (sec. 37). The provisions in these
last-mentioned sections appear to apply to cases where, in addition to
the advice, assistance, and approval of the responsible Ministers, the
nature of the power to be exercised seems to require that that exercise
should be formally recorded or publicly announced. There is no
indication in the Act that it was designed to create a single power or
function in the Governor, except the power of appointing his Ministers,
as a personal power to be exercised on his own individual judgment
or discretion, or otherwise than in accordance with the advice of those
whom he selects to advise and carry into act and operation the consti-
tutional exercise of the powers given to him by the statute law as the

COLONIAL GOVERNMENT IN AUSTRALIA. 47

appointee and representative of the Crown. The Imperial Government
has never, I believe, even in the boldest of its attempts to interfere
illegally with the Victorian Constitution, suggested that the Governor
ought to exercise any of his statutory powers without receiving the
advice of Her Majesty's Government for Victoria. It has only
asserted for itself the right to disregard that advice, and to order the
Governor, as its officer, to act in defiance of it. I think that the rule
of responsibility applies to every one (if to any) of the powers of the
Crown created by Statute in the Crown's representative, the Governor,
and that none of them can be lawfully exercised except through and
by the advice, or with the knowledge and approval, of the responsible
Ministers appointed by the Governor. What are those powers ?
Some of them are merely formal, and their exercise and the approval
of Ministers would ordinarily be a matter of course (see sees. 8 and
32). Others are of a very different nature. Thus the appoint-
ment to public offices (sec. 37), including the general control of the
Public Service, is a power not only of the highest importance, but of
a very large scope. Again, the power of convening and proroguing
Parliament and of dissolving the Legislative Assembly (sec. 28) is one
of large significance, and the exercise of it, undisturbed by any
external influence, by the Ministers whom the Governor is pleased to
retain in the service of the Crown as his advisers, is a matter of
moment to the whole community as well as to political parties and the
movements of opinion in Parliament. Sections 57 and 58 indicate, in
my opinion, more clearly than all the others the intended scope and
the legal and actual extent of the principle of Responsible Govern-
ment established by the Constitution Act. It is from the powers of
the Crown express and necessarily to be implied from these sections
as well as from the powers of control over the Public Service, granted
by sec. 37, that all the ordinary general functions of Responsible
Government spring. From these powers the legal existence and the
rightful exercise of those functions may, and, in my opinion, must be
inferred. It has been seen that the Legislature obtained by the Act
not only the right to dispose by legislation of the waste lands of the
Crown, but also the control, for the use and benefit of the people of
Victoria, by means of appropriations for specific purposes, of all the
consolidated revenues derived from that and all other sources. This
power covers, directly and indirectly, the whole field of Parliamentary
action outside the field of general legislation." — Per Higinbotham,
C.J., Ah Toy V. Musgrove, 14 V.L.R., 392-4.

On 22nd May, 1856, the first Parliament of Xew South Wales
under the new Constitution was opened by Sir William T. Denison.
The first Responsible Ministry was composed of Mr. (afterwards Sir)
Stuart Alexander Donaldson, Colonial Secretary and Premier; Mr.
Thomas Holt, Treasurer; Mr. (afterwards Sir) William Montagu
Manning, Attorney-General ; Mr. J. B. Darvall, Solicitor-General ;
Mr. George R. Nichols, Auditor-General; and Mr. W. C. Mayne,
Representative of the Government in the Legislative Council.

Amexdment op the New Coxstitctiok. — The power conferred on
the Parliament of New South Wales to alter the Constitution has not
been very extensively exercised. The first amendment was made in

48 HISTORICAL INTRODUCTION.

1857, when a Bill was passed to repeal so much of the Constitution
Act as required the concurrence of unusual majorities in the passing
of Bills to alter the constitution of the Council or the number and
apportionment of members of the Assembly. By section 15 of the
Constitution the Legislature was authorized to alter the electoral
districts and the electoral divisions of the Assembly, and to alter the
apportionment of Representatives, provided that such alterations were
passed by a majority of the Council and by two-thirds of the members
of the Assembly. By section 36 the legislature was authorized to
alter the law concerning the Legislative Council and to provide for
the nomination or election of another Council, subject to the condition
that such alteration was passed with the concurrence of two-thirds of
the members of the Council and of the Assembly respectively. By
the Act 20 Vic. No. 10, reserved on 20th January, 1857, proclaimed
on 19th October, 1857, these unusual majorities were abolished, so
that it is now competent for the Parliament of New South Wales to
pass Bills to amend the Constitution in the same manner and by the
same majorities of members as other laws for the good government of
the colony, pi-ovided that such Bills must be reserved for the signifi-
cation of the Queen's pleasure. By the Act 22 Vic. No. 20 (N.S.W.)
section 20 of the Constitution Act, disqualifying ministers of religion
from becoming members of Parliament — an inhibition notoriously
directed against the late Dr. Lang — was repealed. By the same Act
the number of members of the Assembly was increased and the
qualification of the electors was lowered. By the Act 37 Vic. No. 7
(N.S.W.) the clause in the Constitution Act providing that the
Assembly should continue for five years from the date of the return
of the writs, subject to be sooner dissolved by the Governor, was
repealed, and it was enacted that every future Assembly of New
South Wales should continue for three years from the day of the
return of the writs subject to be sooner dissolved by the Governor.

Reforms. — The structure and composition of the Legislative
Council of New South Wales, as established by the Constitution Act,
have not since been altered ; except that by the Constitution Act
Amendment Act of 1890 (54 Vic. No. 1) the quorum was reduced from
one-third to one-fourth of the members. There is no legal limit to the
number of its members, but its average numerical strength is about 65.
The qualifications of members are : male; 21 years; natural born or
naturalized subject. The tenure of ofiice is for life, or until resigna-
tion, or forfeiture by absence or other disability. There are now 125
members of the Legislative Assembly, each representing a single
electorate. The suffrage is manhood ; every natural born or naturalized
male subject, resident twelve months in the colony and three months
in an electoral district, being entitled to an elector's right for the
district. No elector can have more than one vote. Every holder of
an elector's right is qualified as a candidate. Members of the
Assembly receive £300 a year each ; members of the Council are
unpaid.

Enlarged Leqislative Powers. — Under the provisions of Imperial
Acts applicable to the colonies the legislative powers and functions of
the Parliament of New South Wales, like those of the Parliaments of

COLONIAL GOVERNMENT IN AUSTRALIA. 49

the other Australian colonies^ are much larger than they appear on
the face of the constitutional instruments. The Acts so applicable
may be considered as contributory charters of self-government in
Australia ; among tliem may be mentioned the following : —

1. Enabling the legislature of any British possession to make

provision for securing to British authors protection within
such possession, and in such case authorizing Her Majesty
to declare by Order in Council that so long as such pro-
vision continues in force the prohibitions contained in the
Copyright Act, 5 and 6 Vic. c. 45, are suspended as regards
such colonv or possession. — Colonial Copvright Act, 1847j
10 and 11 Vic. c. 95.

2. Enabling the legislature of any British possession to pass

laws for the punishment of offences relating to the
coinage. — Coinage Offences (Colonies) Act, 1851 ; 16 and
17 Vic. c. 48, s. 4.

3. Enabling the legislature of any British possession to apply

or adapt to any British ship, registered in such possession,
any of the provisions of the Merchant Shipping Acts
" which do not otherwise so apply," and providing that
such law shall have effect throughout Her Majesty's
dominions. — 17 and 18 Vic. c. 104, s, 288; re-enacted in
the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60,
s. 264.

4. Authorizing the legislature of any British possession to

repeal any provision of the Merchant Shipping Acts
(other than parts thereof which relate to emigrant ships)
relating to ships registered in that possession. — 17 and 18
Vic. c. 104, s. 547 ; re-enacted in the Merchant Shipping
Act, 1894, 57 and 58 Vic. c. 60, s. 735.

5. Enabling the legislature of any British possession to make

laws for the trial and punishment of offences committed
within such possession, but resulting in death on the sea,
or beyond the limits of such possession. — Admiralty
Offences (Colonial) Act, 23 and 24 Vic. c. 122 (28th
August, 1860).

6. Empowering the legislative authority of any colony, with

the approval of Her Majesty in Council, to make laws for
providing and maintaining vessels of war, and for raising
and maintaining seamen for the naval defence of the
colony, and for enforcing order and discipline among
the men and officers whilst ashoi-e or afloat within the
limits of the colony. — Colonial Naval Defence Act, 28
and 29 Vic. c. 14, s. 3. (7th April, 1865).

7. Repealing the old common law doctrine that colonial legis-

latures could not pass any law repugnant to the law of
England, and enacting that no colonial law shall be void
or inoperative on the ground of repugnancy to the law
of England, unless the same be repugnant to some Act of
the Imperial Parliament applicable to the colonies. —

50 HISTORICAL INTRODUCTION.

Colonial Laws Validity Act, 28 and 29 Vic. c. 63 (29th
Jure, 1865).

8. Declaring the validity, throughout the empire, of laws made

by the legislature of any British possession establishing
the legality of marriages contracted in any such posses-
sion, provided that at the time of such marriage both of
the parties thereto were, according to the law of England,
competent to contract the same. — Colonial Marriages Act,
28 and 29 Vic. c. 64 (29th June, 1865).

9. Removing doubts as to the necessity of reserving for the

Queen's assent Bills passed by Australian legislatures,
altering or repealing laws for the imposition of duties of
customs.— 29 and 30 Vic. c. 74 (6th August, 1866).

10. Enabling the legislature of any British possession to provide

for the examination of, and to grant certificates of compe-
tency to, persons intending to act as master, mate or
engineer on board British ships. — 30 Vic. c. 11, s. 38;
re-enacted in the Merchant Shipping Act, 1894, 57 and 58
Vic. c. 60, s. 102.

11. Authorizing the legislature of any British possession to

regulate the coasting trade of that possession, subject to
the condition that all British ships shall be treated in
exactly the same manner as ships of the possession, and
subject to Her Majesty's treaty obligations, with respect
to ships of foreign states. — 32 and 33 Vic. c. 11, s. 4; re-
enacted in the Merchant Shipping Act, 1894, 57 and 58
Vic. c. 60, s. 736.

12. Confirming the Acts of legislatures of British possessions in

imparting the privileges of naturalization to aliens within
the limits of such possessions. — Naturalization Act, 33 and
34 Vic. c. 14, s. 16 (12th May, 1870).

13. Authorizing the legislature of any British possession to

make provision for carrying into effect the Imperial law
relating to surrender of fugitive criminals, from foreign
countries, suspected to be in such British possession. —
Extradition Act, 33 and 34 Vic. c. 52, s. 18 (9th August,
1870).

14. Enabling the Parliaments of the Australian colonies to pass

laws imposing preferential and differential duties on goods,
wares and merchandise, the produce of the Australian
colonies. — Australian Colonies Duties Act, 36 and 37 Vic.
c. 22 (26th May, 1873).

15. Enacting that where the legislature of any British possession

provides for the survey of and grants certificates for
passenger steamers to the satisfaction of the Board of
Trade, such certificates are to be .in force as if granted
under the Imperial Act. — 39 and 40 Vic. c. 80, s. 17; re-
enacted in the Merchant Shipping Act, 1894, 57 and 58
Vic. c. 60, s. 280.

16. Enacting that where any force of volunteers, or of militia,

or any other force, is raised in a colony, any law of the

COLOXTAL GOVERNMENT IN AUSTRALIA. 51

colony may extend to the officers, non-commissioned
officers, and men belonging to such force, whether within
or without the limits of the colony ; and that where any
such force is serving with Her Majesty's regular forces,
then so far as the law of the colony has not provided for
the government and discipline of such force, the Imperial
law shall apply. — Armv Act, 1881 ; 44 and 45 Vic. c. 58,
s. 177.

17. Authorizing the legislature in any British possession to

constitute courts to make enquiries into charges of incom-
petency or misconduct on the part of masters, mates or
engineers of ships, or as to shipwrecks or other casualties
affecting ships, in cases occurring within or outside the
limits of such possessions. — 45 and 46 Vic. c. 76; re-enacted
in the Merchant Shipping Act, 1894, 57 and 58 Vic. c. 60,
s. 478.

18. Enacting that where the legislature of any British possession

provides for the fixing and certifying of load lines on
British ships registered therein, and such provision is
satisfactory to Her Majesty, certificates given thereunder
shall be as effective as if given under the Imperial Act. —
53 Vic. c. 9, s. 3; re-enacted in the Merchant Shipping
Act, 1894, 57 and 58 Vic. c. 60, s. 444.

(2) VICTORIA.

FoDXDATiox. — On 5th January, 1802, Lieutenant Murray, in com-
mand of the Lady Nelson, whilst exploring the great indentation in
the southern coast reported by Lieutenant Grant, discovered the
heads leading into an expanse of inland water, to which he gave the
name of Port King, in honour of Governor King, but which the
Governor afterwards altered to Port Phillip, as a compliment to his
predecessor, the founder of the Sydney settlement. On 9th March,
" the united colours of Great Britain and Ireland " were hoisted on
the ship and on the shores of the port, a volley was fired, and the
place was taken possession of in the name of King George III. On
20th January, 1803, Mr. Charles Grimes, Surveyor-General of New
South Wales, entered the port in the Cumherland, explored the coast
line, and ascended the Yarra as far as Dight's Falls (Studley Park).
During the same year Lieutenant-Colonel David Collins was sent from
England to Port Phillip in charge of an expedition, consisting in all
of 400 souls, with instructions to establish a penal settlement on the
shores of the port. The first ship of the expedition, the Ocean, arrived
on 7th October, and the second, the Calcutta, on 11th October.
Collins was not satisfied with the place, and on 27th January, 1804,
with the consent of the Sydney Government, he abandoned the
attempt to form a settlement at Port Phillip, and removed his charges
to Sullivan's Cove, on the Derwent, Tasmania.

52 HISTORICAL INTRODUCTION.

The Port Phillip District was first reached overland from Sydney
by Hume and Hovell, in 1824. In November, 1834, Messrs. Edward
and Francis Henty established a pastoral station at Portland. They
are considered to have been the pioneer settlers of the southern part
of the continent. In 1835, an association was formed in Van Diemen's
Land to colonize Port Phillip. On 31st May, 1835, John Batman
sailed up the Yarra. In the same year John Pascoe Fawkner followed.
A settlement was formed on the banks of the Yarra, On 29th Sep-
tember, 1837, Captain William Lonsdale arrived at Port Phillip,
being appointed to act as Resident Magistrate ; with him was Captain
Hobson, after whom Hobson's Bay was named. Captain Lonsdale
selected the site on which was built a town that afterwards grew into the
city of Melbourne. On 1st October, 1839, Mr. Charles Joseph La Trobe
became the head of the Port Phillip community under the title of
Superintendent, a post which he occupied for fifteen years ; Captain
Lonsdale acted as secretary to the local Government.

In 1840, the territory of New South Wales was, for all purposes
connected with the disposal of Crown lands, divided into three dis-
tricts, known respectively as the North District, the Middle or Sydney
District, and the Southern or Port Phillip District. The first of these
Districts practically comprised all the lands north of latitude 32°, but
it was expressly noted that its northern limits were not yet fixed.
The second comprised nineteen counties, bounded on the north by the
southern boundary of the first District and on the south by the
southern boundaries of the counties of St. Vincent and Murray, " and
thence by the rivers Murrumbidgee and Murray to the eastern
boundary of the Province of South Australia." The third, or Port
Phillip District, included all the lands to the south of the southern
boundary of the Sydney District. — Jenks' Gov. of Vict., p. 40.

By the Act 5 and 6 Vic. c. 76 (30th July, 1842) New South
Wales was granted a Legislative Council consisting of 30 members,
12 of whom were to be appointed by Her Majesty, and 18 to be elected
by the -qualified inhabitants of the colony, the old Council was
authorized to divide the colony into electoral districts for the return
of elective members, but the Imperial Act specially provided that the
District of Port Phillip, the town of Sydney, and the town of Mel-
bourne should be electoral districts ; that the district of Port Phillip
should return at least five members, the town of Sydney two members,
and the town of Melbourne one member, and that for the purpose of
the Act, the northern and north-eastern boundary of the Port Phillip
District should be a " straight line drawn from Cape Howe to the
nearest source of the river Murray, and thence the course of that
river to the eastern boundary of the Province of South Australia."
It was by this Act that the colony of Victoria, afterwards to be
created, lost the Murrumbidgee as its northern boundary.

Separation.— By the Act 13 and 14 Vic. c. 59 (5th August, 1850),
intituled " An Act for the better Government of Her Majesty's Aus-
tralian colonies," it was provided '' that after such provisions as here-
inafter mentioned shall have been made by the Governor and Council
of New South Wales, and upon the issuing of the writs for the first
election in pursuance thereof, as hereinafter mentioned, the territories

COLONIAL GOVERN^MENT IN AUSTRALIA. 53

now comprised within the said District of Port Phillip, incltiding- the
town of Melbourne, and bounded on the north and north-east by a
straight line drawn from Cape Howe to the nearest source of the
river Murray, and thence by the course of that river to the eastern
boundary of the colony of South Australia, shall be separated from
the colony of New South Wales, and shall cease to return members to
the Legislative Council of such colony, and shall be erected into and
thenceforth form a separate colony, to be known and designated as
the colony of Victoria." The Legislative Council of New South
Wales was empowered to determine the number of members of which
the Legislative Council of Victoria should consist. It was also
authorized to pass an Electoral Act fixing the electoral districts for
which the elective members should be returned.

The powers and functions of the Victorian Legislative Council
were, by this Constitutional Act, similar to those of the re-organized
Legislative Council of New South Wales and the newly constructed
Councils of Van Diemen's Land and South Australia, viz., (1) to make
laws for the peace, order, and good government of the colony; (2) to
impose taxation, including the imposition of customs duties; (3) to
appropriate to the public service the whole of the public revenue
arising from taxes, duties, rates, and imposts. Her Majesty was
authorized by letters patent to appoint a Court of Judicature to be
styled '' the Supreme Court of the Colony of Victoria." The restric-
tions on the powers and functions of the Legislative Council of Vic-
toria were similar to those of the Councils of New South Wales, Van
Diemen's Land, and South Australia, viz., (1) that no such law should
be repugnant to the law of England; (2) that no such law should
interfere with the sale and appropriation of the waste lands of the
Crown within the colony ; (3) that no customs duties of a differential
character should be imposed ; (4) that it should not be lawful for the
Council to pass any Bill appropriating to the public service any sura
of money for any purpose unless the Governor should have previously
recommended that provision for such appropriation be made.

The qualitications of electors and of elective members of the pro-
posed Legislative Council of Victoria were to be the same as those of
the electors and elective members of the Legislative Council of New
South Wales, under the Act 5 and 6 Vic. c. 76, as amended by 13 and
14 Vic. c. 59.

This Act was proclaimed on 11th January, 1851. The old Legis-
lative Council of New South Wales met on 28th March for the
purpose of making electoral and judicial arrangements required to
bring the new Act into force in Victoria. Two Acts were passed
specially concerning Victoria. The first was 14 Vic. No. 45 (N.S.W.),
which provided that "all justices of the peace, and other oflicials
holding office or commonly resident within the Port Phillip District at
the passing of the Act, shall continue to act as though the Separation
Statute had not been passed, until removed or re-appointed by the
Gi-overnment of Victoria." The other Act was 14 Vic. No. 47
(N.S.W.), which provided that '"'the Legislative Council of Victoria
shall consist of 30 members, 10 nominee and 20 elective."

These arrangements having been made, the old Legislative

54 HISTORICAL INTRODUCTION.

Council of New South Wales was dissolved and re-elected on the
lower franchise. On 1st July, 1851, the writs for the election of 20
elective members of the Legislative Council of Victoria were issued.
On 15th July Mr. La Trobe announced his appointment as Lieutenant-
Governor of the colony. In this manner the colony of Victoria was
called into existence and received the first pulsation of autonomous
political life.

Political Peogress. — The Act of 1850, by the liberality of its
provisions in creating so many new Australian Constitutions, as well
as giving scope and room for the development of the best energies of
the young Commonwealth, was a recognition, on the part of the
Imperial Government and Parliament, of the success of the experi-
mental legislation in British North America in 1840, and in the
senior settlement of Australia in 1842. In one particular the Act of
1850 contained a very large and important grant of power to the
newly-created legislatures. By section 32, it was lawful for the
Governors and Legislative Councils of New South Wales, Victoria,
Van Diemen's Land, South Australia, and Western Australia respec-
tively to amend the provisions or laws for the time being in force,
under the Act or otherwise, concerning the election of elective
members of such Legislative Councils respectively, or the qualification
of electors and elective members of the same ; or to establish in the
said colonies respectively, instead of the Legislative Council, a
Council and a House of Representatives, or other separate Legislative
Houses. The only proviso to this power was that such bills should
be reserved for the signification of Her Majesty's pleasure. It was
under this section that a few years afterwards the present Constitu-
tion Act of Victoria was drawn up and sent to the Imperial Govern-
ment for ratification by the British Parliament. This was, indeed,
an important concession. It was the first grant of power to the
Australian colonists to alter the form and structure of their Constitu-
tions, subject to Imperial control. Thus were continued the founda-
tions of Parliamentary Institutions in Australia, commenced by the
Act of 1842. They were truly miniature legislatures to start with,
but it was certain that their progress and development would be
guided by the natural laws of growth and evolution; and time has
demonstrated the elasticity and vitality of the transplanted political
system of the mother country.

The new Legislative Council of Victoria, partly nominated and
partly elected, was convened for the despatch of business on 11th
November, 1851. The official members were : — Mr. W. Lonsdale,
Colonial Secretary; Mr. (afterwards Sir) W. F. Stawell, Attorney-
General ; Mr. (afterwards Sir) Redmond Barry, Solicitor-General ;
Mr. C. H. Ebden, Auditor-General; and Mr. R. W. Pohlman, Chair-
man of the Court of Requests. Mr. J. F. Palmer was elected Speaker.
In his inaugural speech to the Council the Lieutenant-Governor
said : — " In now formally opening this first session, I would offer to
you, and through you, to the inhabitants of the colony at large, my
most hearty congratulations upon the event which, after much delay,
has at length crowned your wishes. Under the provisions of the
recent Imperial Act, and Her Majesty's favour, you meet here to-day

COLONIAL GO\rERNMENT IN AUSTRALIA. 55

as the representatives of the people of an independent colony of tlie
British Empire, with power to watch over the general interests and
to control your own affairs, which has hitherto been, from circum-
stances, in a great measure denied to you ; and it is my earnest
prayer to God that you may be endowed with wisdom and prudence,
which are requisite for the due discharge of the important duties
entrusted to you/'

The Xew Constitution'. — The next important stage in the
constitutional history of Australia was that which was consummated
by the attainment of complete local legislative independence coupled
with complete local Executive authority. The Legislative Councils,
partly nominated and partly elected, together with the system of
personal government, were doomed to be swept away, and to give
place to a more perfect type of legislature, and to a responsible
administration according to the British model. The discovery of
gold, which was announced to the world a few months after the
separation of Victoria from New South Wales, soon began to
attract a large and ever-increasing population to the shores of
Australia, and new and exciting events followed one another in
rapid succession. The legislature of New South Wales took the
lead in the movement for an extension of Constitutional power,
and the Home Government promptly and willingly agreed to grant
the reform of the Constitution asked for.

Reference has been made to, and an extract given from. Sir -John
Pakington's despatch to the Governor of New South Wales promising
to give effect to the wishes of the Legislative Council of New South
Wales, that a Constitution resembling that of Canada, based on a bi-
cameral legislature, should be adopted, and suggesting that the
Legislative Council should proceed to frame one. A similar despatch,
dated 18th January, 1853, offering the same concessions, was received
by the Lieutenant-Governor of Victoria. The Victorian Legislative
Council appointed a select committee of twelve members, chosen by
ballot, to consider and report on the best form of government for the
colony. The committee subsequently brought up a report accompanied
by a Draft Bill. On 25th January, 1854, the Bill was read a second
time, committed and reported. On 24th March it was passed, and on
the 28th it was reserved for the Queen's assent.

The Constitution, so sent to England, proposed to create a bi-
cameral legislature, consisting of a Legislative Council, to be com-
posed of 30 members, elected by qualified voters, and a Legislative
Assembly, consisting of double that number, elected on a more liberal
franchise. The Queen, with the advice and consent of this legislature,
was authorized " to make laws in and for Victoria in all cases whatso-
ever;" to impose and levy duties of Customs; to appropriate public
revenue for specific purposes. All Bills for appropriating any part
of the revenue or imposing any duty, rate, tax, rent, return, or impost,
were required to originate in the Assembly and could be passed or
rejected but not altered by the Council. The Assembly could not
originate any vote, resolution, or Bill for the appropriation of the
consolidated revenue for any purpose which should not have been first
recommended by a message of the Governor to the Assembly. The

56 HISTORICAL INTRODUCTION.

appointment to public offices was to be vested in the Governor with
the advice of the Executive Council, excepting in the case of officers
liable to retire on political grounds, whose appointment was vested "in
the Governor alone." Sec. 37. See p. 46, supra. The Bill also con-
tained clauses similar to those of the New South Wales Bill, relating to
the assent of the Governor to Bills and Her Majesty^s power to disallow
the same ; relating to boundaries of the Australian colonies ; and provid-
'ng that it should not come into force until the control of the sale and
appropi'iation of the waste lands of the Crown within the colony
thould be vested in the legislature to be created. The legislature was
authorized to amend the Constitution, subject to the condition that
Bills altering the Constitution of the two Houses should be passed by
an absolute majority in each House and should be reserved for the
Queen's assent.

The Constitution, so drawn, granted powers to the proposed bi-
cameral legislature in excess of the authority conferred by 13 and 14
Vic. c. 59. In this respect the Select Committee of the Victorian Council
were influenced by the same political considerations as the Select
Committee of the New South Wales Council. They wished to secure
under the new Constitution " other and additional powers and
functions " beyond those vested in the old Council. In so doing they
ran the same risk of having the Royal assent withheld. In fact it
was known that, owing to the excess of powers proposed to be granted
by the Constitution, the Royal assent could not be legally given, and
that fresh Imperial legislation would be required in order to legalize
the Constitution. The powers and functions granted by the Bill
were : —

1. To make laws in and for Victoria in all cases whatsoever.

2. To impose taxation, including duties of customs.

3. To appropriate revenue.

4. To legislate concei*ning the waste lands of the Crown.

5. To amend the Constitution of the Council and Assembly,

subject to certain conditions.
Accompanying these grants were several restrictions and other
provisions relating to electoral matters similar to those embodied in
the New South Wales Bill. As the Bill contained matters in excess
of the powers conferred by the Enabling Act, the law officers of the
Crown advised that it was not competent for Her Majesty to assent to
the Bill without the authority of Parliament. In order to enable that
assent to be given, a Bill was brought into Parliament, to which the
proposed Constitution was added as Schedule A ; amended, however,
by the omission of clauses relating to the assent of the Governor to
Bills, Her Majesty's power to disallow Bills, and respecting the boun-
daries of the Australian colonies. It was intituled " A Bill to enable
Her Majesty to assent to a Bill, as amended, by the legislature of
Victoria to establish a Constitution in and for Victoria." Section 1
enabled Her Majesty to assent to the Bill. Section 2 repealed
Imperial Acts inconsistent with the Constitution, and vested the entire
management and control of the waste lands of the Crown in the new
legislature. The provisions of former Acts relating to the disallow-
ance of Bills were preserved. The new legislature was authorized to

COLONIAL GOVERNMENT IN AUSTRALIA. 57

repeal or alter all or any of the provisions of the reserved Bill snbject
to the conditions therein prescribed.

Responsible Goverxment. — The Bill was passed and assented to
on 16th July, 1855; it is known as the Victorian Constitution Statute;
whilst the Act contained in the Schedule is known as the A^ictorian
Constitution Act. The new Constitution was proclaimed on 23rd
November, 1855. The first Responsible Government was composed
of Mr. AV. C. Haines, Chief Secretary; Mr. (afterwards Sir) W. F.
Stawell, Attorney-General ; Mr. (afterwards Sir) C. Siaden, Treasurer;
Mr. C. Pasley, Commissioner of Public Works; Mr. H. C. E. Childers,
Commissioner of Trade and Customs; Mr. (afterwards Sir) A. Clarke,
Surveyor-General ; and Mr. (afterwards Sir) R. Molesworth, Solicitor-
General; Mr. (afterwards Sir) Wm. H. F. Mitchell (without ofl&ce).
The Ministers were all returned to seats in the first elections for the
Legislative Assembly, which took place in the spring of 1856; they
met the new Parliament as a Cabinet, and resigned on the passing of
an unfavourable resolution upon the subject of the Estimates, in
March, 1859. Mr. (afterwards Sir) John O'Shanassy, the mover of
the resolution, was then, in accordance with Cabinet practice, invited
to form a Ministry. — Jenks' Gov. of Victoria, p. 215.

Enlarged Legislative Powers. — The Constitution of Victoria,
like that of the other Australian colonies, was subsequently enlarged
and impi'oved by further grants of power, contained in Imperial Acts
applicable to the colonies, of which a summary has been given, under
the heading of "Xew South Wales," pp. 49-51, tftipra.

Reforms. — By the Legislative Council (Reform) Act, 1881 (45
Vic. No. 702), the number of members of the Council was increased
from 30 to 41 ; and by the Act 52 Vic. Xo. 995, passed in 1888, the
number was increased to 48, distributed among the fourteen provinces.
The term of membership has been reduced from ten years to six years,
and the qualification of members and electors has been lowered.
Members of the Council must be of the full age of 30 years, natural
born or naturalized subjects, and possessed of freehold property in
Victoria of the annual value of £100. Electors of the Council must
be adult males, natural born or naturalized subjects, and possessed of
a qualification either (1) as freeholders or mortgagors in possession of
land of the annual value of £10, or leaseholders to the annual value
of £25; or (2) as graduates, members of the learned professions, or mili-
tary or naval officers. No property qualification is required for mem-
bership of the Assembly ; members of that House are paid at the rate
of £300 per annum for their services. The franchise for the Assembly
is manhood; every natural-born or naturalized male subject of the
age of 21 years, if resident for 12 months in Victoria and for one
month in an electoral district, is entitled to be enrolled as a voter for
that district. Every such person is also entitled to vote in every
electoral district in which he is seised in fee of lands worth £50, or of
the annual value of £5, or in which his name is entered on a municipal
roll as a ratepayer. By the Act 22 Vic. No. 89 (1859), the duration
of the Assembly was reduced from five years to three years. The
number of members of the Assembly has been increased from 60 to 95.

Constitutional Struggles. — Since the adoption of the Victorian

58 HISTORICAL INTRODUCTION.

Constitution it has been subjected to some severe strains, consequent
on disputes between the two Houses respecting their powers in
matters of taxation and appropriation. During those controversies
questions of great Constitutional importance were raised and dis-
cussed. Among these may be mentioned the action of the Assembly
in tacking the proposed new tariff to the annual Appropriation Bill in
1865; its rejection by the Council and the consequent deadlock; the
insertion of the proposed grant to Lady Darling in the Annual Appro-
priation Bill in 1867; its rejection by the Council and consequent
deadlock ; the insertion of provision for payment of members in the
annual Appropriation Bill of 1877 ; its rejection by the Council and the
consequent deadlock, leading to ^' Black Wednesday '^ dismissals; the
Victorian delegation to England in October, 1878, and Sir Michael
Hicks-Beach's despatch of 3rd May, 1879. In that famous despatch
the Colonial Secretary said : —

" I observe that the address of the Legislative Assembly of Feb-
ruary 14th, 1878, dwells almost exclusively on the necessity of
securing to that House sufficient financial control to enable adequate
supplies to be provided for the public service, and it is prominently
ui'ged in Mr. Berry's letter of February 26th, in proof of the necessity
for finding some solution of the present constitutional difficulty, that
' scarcely a year passes but it becomes a question whether the supplies
necessary for the Queen's service will be granted.' But this difficulty
would not arise if the two Houses of Victoria were guided in this
matter, as in others, by the practice of the Imperial Parliament, the
Council following the practice of the House of Lords, and the
Assembly that of the House of Commons. The Assembly, like the
House of Commons, would claim and in practice exercise the right of
granting aids and supplies to the Crown, of limiting the matter,
manner, measure, and time of such grants, and of so framing the Bills
of Supply that these rights should be maintained inviolate ; and as it
would refrain from annexing to a Bill of Aid and Supply any clause
or clauses of a nature foreign to or different from the matter of such
a Bill, so the Council would refrain from any steps so injurious to the
public service as the rejection of an Appropriation Bill." — Todd, Par.
Gov. Col., 2nd Ed., p. 746.

(3) TASMANIA.

Foundation. — This island, which down to the year 1853 was
known as Van Diemen's Land, was, until its circumnavigation by
Flinders and Bass in 1798, thought to be connected with the main-
laud. In 1803, in consequence of the presence of French exploring
vessels in Australian water.s, an apprehension was felt that the French
meditated the annexation of unoccupied territory along the Australian
coast. In order to remove any impression that Van Diemen's Land
was unclaimed by the British nation, the Sydney Government decided
to formally take possession of it. Accordingly Governor King despatched
Lieutenant John Bowen to the Derwent in charge of the Albion and

COLONIAL GOVERNMENT IN AUSTRALIA. 59

the Lady Nelson, which conveved a number of soldiers and prisoners
thither to form the nucleus of a settlement. The pioneering party
anchored off Risdon Cove on the left bank of the Derwent on 12th
September, 1803. In 1804, Colonel David Collins abandoned an
attempt to form a settlement on the shores of Port Phillip, and
removed with his charges to the Derwent. Not approving of the site
chosen at Risdon Cove by Bowen, he selected another one on the
south bank of the Derwent, known as Sullivan's Cove, which in after
years grew into the city of Hobart, so named after Lord Hobart, the
Secretary of State for the colonies. In 1804, Collins superseded Bowen
as commandant of the Derwent settlement. In the same year Colonel
Patterson, by direction of Governor King, planted a camp at George
Town on the Tamar, but it was subsequently removed to a better
situation at York Town, and eventually to the present site of Launces-
ton. In 1805, it was decided to abandon the prison settlement on
Norfolk Island, and some of the free colonists were transferred to the
Derwent, where " New Norfolk " was founded.

Separation. — By Section 44 of the Act 4 Geo. lY. c. 96 (19th
July, 1823), intituled ''An Act to provide . . . for the better
administration of Justice in New South AYales and Yan Diemen^s
Land," the Crown was empowered to constitute and erect the island
of Yan Diemen's Land into a separate colony independent of New
South Wales. On the 13th October, 1823, a charter of Justice was
issued by the Crown instituting a Supreme Court for Yan Diemen's
Land. Mr. John Lewis Pedder became the first Chief Justice of the
colony. The Court was opened for business on 24th May, 1824.
Pursuant to an Order in Council dated 14th June, 1825, the separation
and independence of Yan Diemen's Land were proclaimed. The new
colony then received a Lieutenant-Governor, an Executive Council,
and a Legislative Council of its own. The Governor of New South
Wales was entitled the " Captain-General and Governor-in-Chief " of
the eastern part of the continent, and the Lieutenant-Governor of
Yan Diemen's Land exercised all the powers and functions of Governor
when the Governor of New South Wales was not present on the
Island. The Executive Council consisted of the Lieutenant-Governor,
the Chief Justice, the Colonial Secretary, the Colonial Treasurer, and
the Chief Military Officer. The Legislative Council consisted of seven
members nominated by His Majesty, its functions, under sec. 24 of
the Imperial Act, being to make laws and ordinances for the peace,
welfare and good government of the colony, provided that such laws
were not repugnant to the law of England.

By the Act 9 Geo. lY. c. 83 (28th July, 1828), the Crown was
authorized to re-model and improve the Supreme Courts of New South
Wales and Yan Diemen's Land. The remaining sections of the Act
providing for the constitution, appointment, and powers of the Legis-
lative Councils in and for both colonies, and providing for the intro-
duction and operation of " all laws and statutes in force within the
realm of England," were made applicable alike to New South Wales
and Yan Diemen's Land. See " New South Wales," pp. 37-8, supra.

The Act 5 and 6 Yic. c. 76 (30th July, 1842), intituled "An Act
for the Government of New South Wales and Yan Diemen's Land,"

60 HISTORICAL INTRODUCTION.

created a new Legislative Council for New South Wales^ but it did
not do so for Van Diemen's Land. The whole of the provisions of
that Actj with several minor exceptions, were confined to New South
Wales.

First Eepresentative Legislature. — For their first instalment of
the Representative System of Government, the people of the southern
island had to wait till the passing of that important Act 13 and 14
Vic. c. 59 (1850), intituled " An Act for the better government of Her
Majesty's Australian colonies." By section 7 of this Act, it was pro-
vided that the legislature already existing in Van Diemen's Land,
under the Act of 1828, might establish within the colony a Legislative
Council, to consist of not more than 24 members, of whom one- third
should be nominated by Her Majesty and the remainder elected by
the inhabitants of the colony. Upon the issue of the writs for the
election of the new Legislative Council, all prior legislation relating
to the constitution, appointment and powers of the old Legislative
Council should be repealed. The Governor of Van Diemen's Land,
with the advice and consent of the new Legislative Council so estab-
lished, had authority to make laws for the peace, welfare and good
government of the colony; to appropriate to the public service the
whole of the revenue arising within the colony from taxes, duties,
rates and imposts, and to impose duties of customs. The Council,
however, could not pass any laws repugnant to the law of England,
or interfere in any manner with the sale or appropriation of the waste
lands of the Crown ; nor could it pass any Bill appropriating to the
public service any sum of money, unless the Governor first recom-
mended that provision for the appropriation should be made (sec. 14) .

Section 7 of this Act was an enabling section, valuable in its
immediate grant of power, but especially valuable as a precedent,
showing the inclination of the Imperial Government to entrust the
people of the colonies not only with representative institutions, but
also with the power of drafting their own constitutional instruments.
The old Council of 1828 was to establish the new Council and make
arrangements for dividing the colony into convenient electoral dis-
tricts. The qualifications of members and of electors for the new
Council were made similar to those of the members and electors of
the Legislative Council of New South Wales, under 5 and 6 Vic. c. 76
as amended by 13 and 14 Vic. c. 59.

The New Constitution. — During the governorship of Sir William
Denison, the new Legislative Council of Van Diemen's Land, in
the exercise of power conferred by 13 and 14 Vic. c. 59 s. 32,
proceeded to draft a Constitution "for the establishment of the
Parliament of Van Diemen's Land." It was proposed that the
new Parliament should consist of a Legislative Council and a House
of A.ssembly in place of the existing Council. The Council was to
consist of 15 members, elected by the qualified voters of the colony.
The House of Assembly was to consist of 30 members elected on a
more popular franchise than that of the Council. Bills for appropri-
ating any part of the revenue, or imposing any tax, rate, duty, or
impost, were required to originate in the Assembly, and the Assembly
could not originate or pass any vote, resolution, or Bill for the appro-

COLONIAL GOVERNMENT IN AUSTRALIA. 61

priation of any part of the public revenue for any purpose which
should not have been first recommended by the Governor to the House.

The Bill so drawn did not, on its face, disclose the powers and
functions of the proposed bi-cameral legislature. For those powers
and functions reference has to be made to sec. 14 of the Act 13 and
14 Vic. c. 59, which defines the powers and functions of the Legisla-
tive Council created under that Act. The bi-cameral legislature
created to replace that Council could, under sec. 32, exercise only
" the powers and functions of the Legislative Council for which the
same may be substituted." Xo law-making power was ever given to
this bi-cameral legislature, except by reference, and to this day the
laws of Tasmania are made in pursuance of the powers given by the
original Enabling Act (13 and 14 Vic. c, 59), and not by the so-called
Constitution. In fact it is not a Constitution ; it is a graft on, or a
development of a pre-existing Constitution, viz., the Enabling Act 13
and 14 Vic. c. 59, sees. 7, 14, and 32. See Notes on the Constitution
of South Australia by the Hon. Sir R. C. Baker, p. 10.

Eesponsible Government. — The Bill so drawn, and called " the
Constitution," was passed by the Legislative Council on 31st March,
1 854, and was reserved by the Lieutenant-Governor for the significa-
tion of Her Majesty's pleasure. It was assented to and proclaimed
on 24th October, 1856, and the first Parliament was opened on 2nd
December, 1856. Sir Henry Edward Fox Young was appointed the
first Governor-in-Chief of the colony under the new system of Respon-
sible Government. The first Responsible ]\Iinistry was composed of
Mr. William T. X. Champ, Colonial Secretary and Premier ; Mr. T.
D. Chapman, Colonial Treasurer ; Mr. F. Smith, Attorney-General ;
Mr. J. W. Rogers, Solicitor-General ; Mr. H. F. Anstey, Secretary for
Lands and Works ; Mr. W. E. Nairn (without ofiice) .

Enlarged Legislative Powers. — At about the same time an
Imperial Act was passed (18 and 19 Vic. c. 56) authorizing the legis-
lature of each of the Australian colonies to sell, dispose of, and legis-
late concerning the waste lands of the Crown in the colony. In 1865
the Colonial Laws Validity Act (28 and 29 Vic. c. 63) removed the
common law restriction which prevented colonial legislatures from
passing any law repugnant to the law of England. In 1875 the pro-
hibition contained in the Act 13 and 14 Vic. c. 59, preventing colonial
legislatures from passing any law providing for the imposition of
differential duties, was by the Australian Colonies Duties Act (36 and
37 Vic. c. 22) abolished, as far as intercolonial duties were concerned.
Other Imperial Acts applicable to the colonies and enlarging the
powers of the Parliament of Tasmania, in common with those of the
other Australian Parliaments, are specified under the heading of
"New South Wales," pp. 49-51, supra.

Change of Name. — In the year 1853, on the acquiescence of the
Imperial Government in the cessation of transportation (finally
abolished in 1857 by 20 and 21 Vic. c. 3), the name "Tasmania" was
generally and voluntarily adopted instead of Van Diemen's Land. A
despatch from the Duke of Newcastle, g^^■^ng the approval of the
Colonial Office to the change, was published in the Gazette of 3rd
May of that year. But it was not until an Act, 19 Vic. No. 17, was

62 HISTORICAL INTRODUCTION.

passed in December, 1855, that the change was legalized. This is
intituled " An Act to obviate any doubts which might otherwise arise
from the change in the name of the colony of Van Diemen's Land to
Tasmania," and it came into operation on 1st January, 1856.

Reforms. — There are at present 18 members of the Legislative
Council of Tasmania. The qualifications of members of the Council
are : male ; 30 years ; natural born or naturalized subjects ; resident
three years in the colony. The tenure is six years ; one-sixth of the
members retiring each year. The qualifications of electors for the
Council are : male ; 21 years ; natural born or naturalized subjects,
possessed of freehold estate of the annual value of £15 or leasehold
estate of the annual value of £30 ; or University graduates, barristers,
solicitors, or medical pi'actitioners. The qualifications of electors of
the House of Assembly, of which there are 37 members, are : male ;
21 years; natural born or naturalized subjects; owners or occupiers
of property whose names appear on an assessment roll in the district
for which the vote is claimed or who are in receipt of an income of
£40 per annum, and who have continuously resided in the district for
over twelve months. In the city districts of Hobart and Launceston
a modification of the Hare system of preferential voting is in force.
Members of both Houses receive £100 per year each.

In Tasmania the elective Legislative Council has claimed absolute
equality of power with the Legislative Assembly, except in the
origination of Money Votes. Not only has it claimed, but it has been
permitted, to amend Tax Bills, Supply Bills, and even Bills for the
appropriation of Supplies for the annual services of the Government.

(4) SOUTH AUSTRALIA.

First Statutory Authority. — This province originally comprised
that part of the colony of New South Wales lying between the
meridians of 132° and 141° of east longitude, bounded on the south
by the Southern Ocean, and on the north by 26° parallel of south
latitude. By the Act 24 and 25 Vic. c. 44, a strip of territory, com-
prising 80,000 square miles, lying between South Australia and
Western Australia, called "no man's land," was on 10th October,
1861, added to the province, thus extending its western limits to
129° east longitude, the former western boundary of New South
Wales. On 6th July, 1863, the vast tract of country known as the
Northern Territory, formerly a part of New South Wales, was, by
letters patent, added to the province.

In 1829, Mr. Edward Gibbon Wakefield published a pamphlet
under the title of " A Letter from vSydney," in which he propounded
a new system of colonization, the essence of which was that the Crown
should sell the waste lands of Australia at substantial prices for cash
and apply the proceeds to the promotion of immigration and the
making of roads. In 1831, a company was formed in England with
the object of promoting systematic colonization in South Australia on
the lines laid down by Mr. Wakefield. Objection was taken to giving

COLONIAL GOVERNMENT IN AUSTRALIA. 63

legislative power to an irresponsible company, and the scheme fell
through. Amended proposals were afterwards submitted to the
Imperial Government, and on 15th August, 1834, the Act 4 and b
Will. IV. c. 95 was passed, intituled " An Act to empower His
Majestv to erect South Australia into a British possession or province,
and to provide for the colonization thereof." This Act enabled His
Majesty, with the advice of the Privy Council, to erect and establish
South Australia into a British province and to authorize and empower
one or more persons resident in the province to make, ordain, and
establish such laws, institutions, and ordinances, to impose such
duties and taxes, and to appoint such officers and to constitute such
courts as might be necessary for the peace, order, and good govern-
ment of the people of the province. It also empowered the King,
with the advice of the Privy Council, to appoint colonization com-
missioners, who were to have the control of the Crown lands. Power was
given to make orders and regulations for the survey and sale of the
lands, and to employ portion of the money so derived in conducting
the immigration of labourers from Great Britain. In the exercise of
these powers the province was erected and established, and a Governor,
a Judge, seven Commissioners, and other officials were appointed.
The Governor, with the concurrence of the Chief Justice, the Colonial
Secretary, and the Advocate-General, or two of them, was authorized
to make laws and impose taxes.

Captain (afterwards Admiral Sir) John K. H. Hindmarsh, R.N.,
was appointed the first Governor; Colonel Light, Surveyor-General;
Colonel Torrens, Chairman of the Commission in England ; Mr. (after-
wards Sir) James Hurtle Fisher, Resident Commissioner; Colonel
Goudge, Colonial Secretary ; Sir J. W. JefFcott, Judge ; Mr. Charles
Mann, Advocate-General ; Captain Thomas Lipson, Naval Officer ;
Mr. George Stevenson, Governor's Secretary and Clerk of Council.

The first ship despatched to South Australia by the Commissioners
was the Cygnet, which in July, 1836, arrived at Kangaroo Island,
where there was a small whaling station. Among the passengers
was Mr. (afterwards Sir) George Strickland Kingston, who was one
of a party of survey officers. The ships Duke of York and Lady Mary
Pelham, conveying immigrants, sailed in February, 1836, and arrived
at Kangaroo Island in August following. Shortly afterwards the
Rapid arrived with an additional survey party under Colonel Light.
Xot satisfied with Kangaroo Island, he searched along the main land
for a site suitable for the settlement. A tract on the Torrens Eiver
was eventually selected at a suitable spot. It was called Adelaide in
honour of the Queen of William IV. On 28th December, 1836,
Governor Hindmarsh arrived in the Bufalo. He issued a proclama-
tion at Glenelg, announcing the establishment of the Government.
Thus began colonization in South Australia.

A Crown Coloxt. — In May, 1841, the settlement being in con-
siderable financial difficulties, Governor Gawler was recalled, being
succeeded by Captain (afterwards Sir) George Grey. The British
Government decided to lend the colony sufficient money to pay its
debts, to re-model the system of government and to abolish the
colonization commission. South Australia then became a Crown

64 HISTORICAL INTRODUCTION.

colony. In 1842 the Act 5 and 6 Vic. c. 61 was passed, intituled
" An Act to provide for the better government of South Australia."
Her Majesty was empowered to constitute a nominated Legislative
Council consisting of the Governor and seven other persons resident
therein, with power to make laws for the government of the colony.

That system of government continued in force until the inaugu-
ration of a new scheme under the Constitutional Act, 13 and 14 Vic.
c. 59 (5th August, 1850), already referred to. Section 7 of that Act
authorized the legislature, then by law established in South Australia,
to establish a Legislative. Council consisting of not more than 24
members, of whom one-third were to be appointed by Her Majesty,
and the remainder were to be elected by the qualified inhabitants.
Section 14 gave the Governor, with the advice and consent of this
Legislative Council, power to make laws for the peace, Avelfare, and
good government of the province, and to appropriate to the public
service the Avhole of the revenue arising from taxes, duties, rates, and
imposts, provided that no such law should be repugnant to the law of
England, or interfere with the sale or appropriation of the waste lands
of the Crown. The qualifications of members and electors of the
new Council were to be tlie same as those of the members and electors
of the Legislative Council of New South Wales, under the Act 5 and
6 Vic. c. 76, as amended by 13 and 14 Vic. c. 59. The Council could
not pass any law appropriating to the public service any sum of
money unless the Governor should first recommend to the Council
that provision should be made for such appropriation. On 21st July,
1851, the Legislative Council, consisting of 24 members, was
constituted.

The New Constitution. — In 1853 the Legislative Council of
South Australia, in pursuance of the power conferred by sec. 32 of
the Act 13 and 14 Vic. c. 59, passed a Bill to establish a bi-cameral
legislature for South Australia, consisting of a Legislative Council of
not less than 12 members to be nominated by the Crown, and a House
of Assembly of 36 members to be elected by the inhabitants. The
qualifications of electors and members were defined in the Bill, which,
inter alia, contained a provision limiting the right of the Crown in the
disallowance of Bills. The Bill was passed by the Council and
reserved for the Queen's assent, which was refused on the ground
that its provision limiting the Crown's right of disallowance of Bills
was in excess of the power conferred in sec. 32.

On 15th August, 1855, the old Council of 1851 was dissolved by
proclamation, and a new Council was duly constituted, partly by
election and partly by nomination. In the meantime a copy of the
Constitution which had been passed by the Tasmanian Legislative
Council was forwarded by the Secretary of State for the Colonies to
the Governor, Sir Richard Graves McDonnell, with an intimation that
a Bill drawn on similar lines would be sanctioned. A second Bill to
create a bi-cameral legislature for South Australia was then introduced
into the newly-constituted Council. It provided for the creation of
two elective Houses to take the place of the Council created by the
Act 13 and 14 Vic. c. 59. This Bill was to be called a Constitution
Act. Like its Tasmanian model, however, it conferred no law-making

COLONIAL GOVERNMENT IN AUSTRALIA. 65

power on the bi-cameral legislature, except by reference. In order
to ascertain the principal legislative powers and functions of the Par-
liament of Soutb Australia, reference has to be made to the Act 13
and 14 Yic. c. 59, defining the legislative powers and functions of the
Council for which it was substituted.

According to that Act the Parliament was authorized to make
laws for the peace, order, and good government of South Australia;
to raise revenue by various methods of taxation, including the impo-
sition of duties of customs, and to appropriate the public revenue for
public purposes. By the proposed new Constitution all Bills for
appropriating any part of the revenue of the province, or for imposing,
altering, or repealing any rate, tax, duty, or impost, were required to
originate in the House of Assembly. Neither House could pass any
vote, resolution, or Bill for the appropriation of any part of the
revenue for any purpose, unless the Governor should have first recom-
mended to the House of Assembly that provision should be made for
such appropriation. The appointment to all public offices under the
Government of the province was vested in the Governor, with the
advice and consent of the Executive Council, except the appointment
of certain political officers, required to be members of Parliament,
whose appointment and dismissal was vested in the Governor alone.
After the first general election no person could hold the office of Chief
Secretary, Attorney-General, Treasurer, Commissioner of Crown
Lands, or Commissioner of Works, for any period longer than three
months, unless he were a member of the Council or of the House of
Assembly. This Bill, though described as a Constitution, was in fact
not a Constitution, but, like that of Tasmania, a graft on, or a develop-
ment of a pre-existing Constitution. — Sir R. C. Baker, Notes on the
Constitution of South Australia, " Adelaide and Vicinity," p. 10. It
was passed by the Council on 4th January, 1856, and was reserved by
the Governor for the signification of the Queen's pleasure. It
received the Royal assent, and was proclaimed on 24th October, 1856.

ExLAKGED Legislative Powers. — At about the time when the Bill
received the Royal assent, the Imperial Act (18 and 19 Vic. c. 56)
w:is passed, authorizing the legislature of each of the Australian
colonies to sell, dispose of, and legislate concerning the waste lands of
the Crown in the colony. In 1865, the Colonial Laws Validity Act
(28 and 29 Vic. c. 63) removed the common law restriction which
prevented colonial legislatures from passing any law repugnant to the
law of England. In 1873, the prohibition contained in the Act 13
and 14 Vic. c. 59, preventing colonial legislatures from passing any
law providing for the imposition of differential duties, was by the Aus-
tralian Colonies Duties Act (36 and 37 Vic. c. 22) abolished as far as
intercolonial duties were concerned. A list of other Imperial Acts
enlarging the powers of the Parliament of South Australia, in common
with those of the Parliaments of the other Australian colonies, will be
found under the heading of " New South Wales," pp. 49-51, supra.

Responstblk Government. — The election of members of the two
new Houses took place in March, 1857. The first session of the new
Parliament commenced on 22nd April, 1857, during the Governorship
of Sir Richard Graves McDonnell. The first Responsible Ministry

66 HISTORICAL INTRODUCTION.

was formed by Mr. B. T. Finnis, Chief Secretary, and his colleagues
were Mr. R. D. Hanson, Attorney-General ; Colonel E. E. Torrens,
Treasurer ; Mr. C. Bonney, Commissioner of Crown Lands and Immi-
gration ; and Captain A. H. Freeling, Commissioner of Public Works,
succeeded by Mr. (afterwards Sir) Samuel Davenport. Mr. James
Hurtle Fisher was appointed President of the Council ; and Mr-
George Strickland Kingston first Speaker of the House of Assembly.

Eblations op the Two Houses. — In 1857, a dispute arose between
the two Houses of the South Australian Parliament as to their
respective powers in dealing with Money Bills. A Bill to repeal
certain duties of tonnage was passed by the Assembly and sent to the
Council. The Council amended it as it would an ordinary Bill. Th&
Bill as amended was sent back to the Assembly, which raised a ques-
tion of privilege. The Assembly contended that the Council had no
right to modify any Money Bill, but that it could only either pass or
reject such a Bill. The Council replied that it had an undoubted
right to amend all Bills whatsoever sent up to it by the Assembly.
The dispute was eventually settled by a compromise, commonly called
*' the Compact of 1857," which was adopted by resolutions of both
Houses. This " Compact " defines those Bills, which the Council
cannot amend in the ordinary way, as being " all Bills the object of
which shall be to raise money, whether by way of loan or otherwise,.
or to warrant the expenditure of any portion of the same," and pro-
vides " that it shall be competent for the Council to suggest any
alteration in any such Bills, except that portion of the Appropriation
Bill which provides for the ordinary annual expenses of the Govern-
ment."

In 1881, an Act to amend the Constitution of South Australia
(No. 236) was passed, which provided that " Whenever any Bill for
any Act shall have been passed by the House of Assembly during any
session of Parliament, and the same Bill, or a similar Bill with sub-
stantially the same objects and having the same title, shall have been
passed by the House of Assembly during the next ensuing Parliament,
a general election of the House of Assembly having taken place
between such two Parliaments, the second and third reading of such
Bill having been passed in the second instance by an absolute majority
of the whole number of members of the said House of Assembly, and
both such Bills shall have been rejected by, or fail to become law iu
consequence of any amendments made therein by the Legislative
Council, it shall be lawful for, but not obligatory upon, the Governor
of the said province, by proclamation to be published in the Govern-
ment Gazette, to dissolve the Legislative Council and House of
Assembly, and thereupon all members of both Houses of Parliament
shall vacate their seats, and members shall be elected to supply the
vacancies so created; or for the Governor to issue writs for the
election of one, or not more than two, new members for each district
of the Legislative Council : Provided always that no vacancy, whether
by death, resignation, or any other cause, shall be filled up while the
total number of members shall be 24 or more ;" and that " in the
event of the Council being dissolved, six members shall be elected for
each of the said districts, and the names of such members shall

COLONIAL GOVERNMENT IN AUSTRALIA. 67

be placed on the roll of members for the said districts in the
order provided for in Section 12 of this Act, and thereafter the several
periodical retirements of members referred to in Sections 8 and 13 of
this Act shall date from the daj of their election.'^ Hitherto no
double dissolution has taken place under this section.

Reforms. — Bv the Constitution Amendment Act, 1894 (Xo. 613,
assented to in 1895), the South Australian Parliament granted to
women possessing the necessary qualification the right to vote for
members of both Houses of Parliament.

The Legislative Council of South Australia at present is com-
posed of 24 members who are theoretically elected for nine years.
Every three years eight members whose names stand first on the roll
retire and are eligible for re-election. The qualifications of members
of the Council are : male ; 30 years ; natural-born or naturalized
subjects ; resident in the Province for three years if natural-born,
and five years if naturalized ; no property qualification. The quali-
fications of electors for the Council are : adults ; natural-born or
naturalized subjects ; ownership of freehold property of the clear value
of £50 ; or ownership of leasehold estate of the clear annual value of
£20; or occupation of a dwelling house of the clear annual value of
£25. The Assembly consists of 54 members, elected for a period of
three years, subject to be sooner dissolved by the Governor. They,
as well as members of the Council, are entitled to £200 per year each
for their services. Manhood suffrage for Assembly elections was
adopted in 185(3 ; and in 1895 the franchise was extended to women.
Under the Electoral Code, 1896, all British subjects of the age of 21
years, inhabitants of South Australia, who have been registered upon
any Assembly roll for six months, may vote for members of the Assem-
bly. There is no plural voting ; and provision is made for absent
electors to poll their votes.

(.5) WESTERN AUSTRALIA.

First Statutory Authority. — During the French scare of 1826,
when the French were suspected of designs to annex unoccupied
portions of the Australian continent, Governor Ralph Darling des-
patched from Sydney a detachment of the 39th Regiment with a
number of convicts, in all seventy-five persons, in command of Major
Lockyer, to occupy King George's Sound, with a view to taking
possession of the western part of the continent. In 1827-8, Captain
James Stirling, in H.M.S. Success, surveyed the coast from King
George's Sound to Swan River, and being favourably impressed with
its suitability for settlement, he recommended the formation of a
colony there. In 1829, Captain Fremantle, in H.M.S. Challenger,
was sent to do pioneering work ; he hoisted the British flag on a spot
near the mouth of Swan River, which now bears his name. On
1st June, 1829, Captain (afterwards Sir) James Stirling arrived at
Swan River in the Parmelia, with 800 intending settlers, from which
date the history of the colony commences. Captain Stirling was the
first Lieutenant-Governor, and the ofl&cials associated with him were : —

68 HISTORICAL INTRODUCTION.

Mr. Peter Brown, Colonial Secretary; Lieutenant J. S. Howe, R.N.,
Surveyor ; Mr. C. Sutherland, Assistant-Surveyor ; Mr. H. Morgan,
Storekeeper ; Mr. W. Shilton, Clerk to the Secretary ; Mr. J. Drum-
mond. Agriculturist; and the Rev. J. B. Wittenoom, first colonial
Chaplain.

In the same year the first Imperial Act applicable to Western
Australia was passed, viz., 10 Geo. IV. c. 22. It was intituled "An
Act to provide until the 31st day of December, 1834, for the govern-
ment of His Majesty's settlements in Western Australia, on the
western coast of New Holland." It will be noticed that the name
" Australia," first suggested for the continent in 1814 by Matthew
Flinders, is here used and for the first time sanctioned by an Imperial
Act. See p. 33, supra. By that Act the King, with the advice of
the Privy Council, was empowered to make, ordain, and to authorize
any three or more persons resident within the settlements, to make,
ordain, and constitute laws, institutions, and ordinances for the
peace, order, and good government of His Majesty's subjects and
others within the settlements.

In 1831 Captain Stirling was appointed " Governor and Comman-
der-in-Chief of His Majesty's settlements on the west coast of
Australia," and, by letters patent. Vice- Admiral, with authority from
Cape Londonderry (lat. 13° 44' S.) to West Cape Howe, in lat. 35° 8'
S., and from Dirk Hartog Island (long. 112° 52' E.) to long. 129° E.
He was authorized to appoint an Executive Council, to provide for
the defence of the colony, to institute local government and dispose
of the land according to British law. The members of the first
Council were : — Colonial Secretary and Military Commander, Captain
Irwin ; Surveyor-General and Advocate-General, Mr. G. F. Moore :
Commissioner of Civil Courts and Chairman of Sessions, Mr. W. H.
Mackie; Resident Magistrates, Mr. G. Leake, Mr. H. Whitfield,
Colonel J. Molloy, and Sir R. Spenser. Under the Act of George IV.,
a Legislative Council was formed consisting of members of the Execu-
tive Council and two nominated members, the Governor being Presi-
dent and Mr. (afterwards Sir) Luke S. Leake Speaker. In 1839 Mr.
John Hutt succeeded Captain Stirling as Governor. For fifty years
the history of the colony was uneventful except for the explorations
of Major Warburton, Mr. Ernest Giles, and Mr. (afterwards Sir) John
Forrest.

A Representative Legislature. — By the Act 13 and 14 Vic. c. 59
(5th August, 1850) sec. 9, it was enacted "that upon the presentation
of a petition signed by not less than one-third in number of the house-
holders within the colony of AVestern Australia, praying that a Legis-
lative Council according to the provisions of this Act be established
within such colony, and that provision be made for charging upon the
revenue of such colony all such part of the expenses of the civil
establishment thereof as may have been previously defrayed by Par-
liamentary grants, it shall be lawful f9r the persons authorized^ and
empowered to make, ordain, and establish laws or ordinances for the
government of the said colony, by any law or ordinance to be made
for that purpose, subject to the conditions and restrictions to which
laws or ordinances made by such persons are now subject, to establish

COLONIAL GOVERX^FENT IN AUSTRALIA. 69

a Legislative Council within such colony, to consist of such number of
members as thej shall think fit, and such number of the members of
such Council as is equal to one-third part of the whole number of
members of such Council, or, if such number be not exactly divisible
by three, one-third of the next greater number which is divisible by
three, shall be appointed by Her Majesty, and the remaining members
of the Council shall be elected by the inhabitants of the said colony."
Under this Act Western Australia, in 1870, was granted a Legislative
Council consisting of 26 members, nine of whom were nominated and
17 were elected.

Responsible Goverxmext Sought. — Three years after the grant
of this instalment of Representative Institutions a movement was
commenced in Western Australia in favour of Responsible Government
as it existed in the Eastern colonies. Earl Kimberley, in reply to the
first application, said : " Her Majesty's Government would not be
disposed to resist any widespread and sustained desire which might
prevail in the colony for Responsible Government." In 1874 a draft
of a Constitution Bill was sent to the Secretary of State for the
Colonies, who, however, decided that the colom^ was not yet ready for
the change. On 9th April, 1884, the Governor, Sir Napier Broome,
reported that though he saw no valid reason for withholding free
institutions from the colony, after its inhabitants should have expressed
a general and decided wish to take upon themselves the burden and
responsibility of that form of government, he was strongly of opinion
that, until such a wish was expressed, which certainly it had not been
as yet, it would be a mistake to make such a great and irretrievable
change. He also said that Western Australia must be separated into
two parts, and that the northern portion, above the 26th degree of lati-
tude, should remain for the present a Crown colony. On 6th July,
1887, the Legislative Council of Western Australia (1) affirmed the
desirability of the concession of self-government, but (2) protested
against the division of the colony. On 12th July, 1887, the Governor
reported that having carefully considered the whole matter, he
strongly supported both the first and second of the resolutions, and
gave his reasons why he had changed his opinion in respect to the
suggested division of the colony in his despatch of three years pre-
vious, but added that it was only a matter of time when Western
Australia would be separated into two or more colonies.

In a despatch, dated December, 1887, the Secretary of State
intimated that Her Majesty's Government favoured the view that, in
any new constitutional scheme, the colony should be divided at about
latitude 26' (or in the neighbourhood of the Murchison River) ; that
it should be lawful for the legislature of Western Australia to regu-
late, by Act passed in the usual way, the sale, letting, and other dis-
posal of the waste lands of the Crown south of that line, and the
disposal of proceeds arising therefrom ; and that all the regulations
affecting the sale, letting, disposal and occupation of waste lands of
the Crown in the territory north of that line should remain under the
control of Her Majesty's Government, the proceeds of all land sales
being invested at intei-est, to form a fund of which the principal
would be reserved for the benefit of anj' colony or colonies, which

70 HISTORICAL INTRODUCTION.

niiglit thereafter be created in such northern territory, except so far
as it might from time to time be expended for the special advance-
ment of the district in which it was raised.

Peepaeation of a New Constitution. — In 1889, the Legislative
Council was dissolved and a general election took place, the principal
question being the introduction of Eesponsible Government. The
new Council passed a resolution, without dissent, in favour of the
proposed change. A new Constitution was then drafted by the
Council. It provided for the creation of a bi-cameral legislature,
composed of an elective Upper House of lb members, and an elective
Lower House of 30 members. To this legislature it was proposed to
give powers and functions similar to those vested in the legislatures
of the eastern colonies, including the disposition of the waste lands of
the Crown. It Avas further provided that, notwithstanding anything
in the Constitution, Her Majesty might divide the colony of Western
Australia by separating therefrom any portion thereof, and either
erect the same or any part thereof into a separate colony or colonies,
or subdivide any colony so erected, or re-unite to the colony of Western
Australia any part of any colony so created. The sum of £5,000 per
year was appropriated for the benefit of the aboriginal natives within
the colony, to be expended in providing them with food and clothing
and in promoting their education. Pensions were provided for Sir
Malcolm Fraser, Colonial Secretary; Mr. Charles N. Warton, Attorney-
General; Mr. A. O'Grady Lefroy, Colonial Treasurer; and Mr. John
Forrest, Surveyor-General and Commissioner of Crown Lands, upon
their retirement from oflBce on political grounds.

The Bill was forwarded to the Secretary of State for the Colonies,
who, on 31st August, 1888, returned it with suggested amendments —
the principal being that the members of the Council should be
nominated, instead of elected. The Legislative Council agreed to
accept the proposed amendments, subject to the provision that after
the expiration of six years, or as soon as the colony acquired a popula-
tion of 60,000, the Upper House should be constituted by election,
instead of nomination. The Bill was passed and reserved on 29th
April, 1889. This compromise was accepted by the Secretary of State
for the Colonies, Lord Knutsford, and on 11th July, 1889, he moved
the second reading of a Bill to enable Her Majesty to assent to a Bill for
conferring a Constitution on Western Australia. One of the grounds
suggested, as justifying the change, was that it was desirable that all
the colonies on the Australian continent should, as soon as practicable,
be placed on the same footing. Until there was uniformit}' of govern-
ment, there could be little chance of any system of federation, to
which he looked forward as a change which would largely tend to
increase the wealth and strength of the colonies. The Bill Avas passed
by the House of Lords, but it encountered strong opposition in the
House of Commons, where the principal objection raised was the in-
advisability of handing over such a vast area of country, viz., 978,000
square miles, to a Government responsible to only a small population,
not exceeding 40,000 inhabitants. On the 26th August the Bill was
withdrawn.

Responsible Government. — In the next session of Parliament,

COLONIAL GOVERNMENT IN AUSTRALIA. 71

however, the Bill received the concurrence of both Houses. It
became law on the 25th July, 1890; the new Constitution was pro-
claimed on 21st October, 1890. It is embodied in the Imperial Act,
o3 and 54 Vic. c. 26. The first Kesponsible Ministry was composed
of Sir John Forrest, Colonial Treasurer and Premier ; Mr. Geo. Shen-
ton. Colonial Secretary (succeeded by Mr. Stephen Hy. Parker) ; Mr.
Edward Home Wittenoom, Minister of Mines; Mr. Stephen Burt,
Q.C., Attorney-General (succeeded by Mr. R. VT. Pennefather) ; Mr.
William Edward Marmion, Commissioner of Crown Lands (succeeded
by Mr. Alexander Robert Richardson) ; Mr. Harry Whittall Venn,
Commissioner of Railways and Public Works.

Reforms. — On 18th July, 1893, the population of the colony
being then beyond 60,000, the le^slature of Western Australia passed
an Act, 57 Vic. Xo. 14, to amend the Constitution, abolishing the
nominee Council and substituting one elected by the qualified inhabi-
tants of the colony.

In the session of 1899 a "Constitution Acts Amendment Act"
was passed by both Houses of the West Australian Parliament, and
reserved on 16th December for the Royal assent. This Act, when
assented to, will introduce several important changes. Besides con-
solidating previous Constitution Amendment Acts, it increases the
numbers of both Houses, extends the franchise for both Houses to
women, reduces the period of residence in the colony necessary in
order to qualify as an elector, and reduces the duration of the
Assembly to three years from the date of its first meeting. The
Legislative Council is to consist of 30 members, returned by 10 elec-
toral provinces. Under this Act the qualifications of Councillors are :
— Male ; 30 years ; a British subject, either natural-born and resident
in the colony two years, or naturalized and resident for five years.
Every adult person, being a natural-bom or naturalized British sub-
ject, resident six months in the colony, is entitled to be registered as
a Council elector in every Province in which he or she has a freehold
qualification of £100 capital value, a household or leasehold qualifica-
tion of £25 a year, or a Crown lease or license of £10 a year. For
membership of the Assembly, of which there are to be 50 members,
the qualifications are : male ; 21 years ; a British subject, either
natural-born and resident in the colony for one year, or naturalized
for five years and resident two years. Every adult person, being a
natui*al-bom or naturalized British subject, is entitled to be regis-
tered as a voter if he or she has resided in the colony for
six months, and is entitled to vote after being registered for six
months; and is also entitled to a property vote in every district in
which he or she has a freehold qualification of £50 capital value, a
leasehold or household qualification of £] 0 a year, or a Crown lease or
license of £5 a year.

72 HISTORICAL INTRODUCTION.

(6) QUEENSLAND.

Foundation. — In 1823 Lieutenant Oxley^ the Surveyor-General
of New South Wales, was directed by Sir Thomas Brisbane, Goveruor
of New South Wales, to inspect Port Bowen, Port Curtis, and More-
ton Bay, in order to ascertain which, if any of them, was suitable for
the establishment of a new penal settlement. In the course of his
explorations he discovered a large river flowing into Moreton Bay,
which he named the Brisbane, and explored for the distance of fifty
miles. He was so satisfied with the country that he reported in favour
of the establishment of a penal depot on the banks of the Brisbane.
In September, 1824, in company with Lieutenant Miller, who was in
charge of a detachment of the 40th regiment, Oxley returned to the
Brisbane River and formed the nucleus of a prison settlement, com-
prising thirty convicts, near the present site of the city of Brisbane.
In the following year the Brisbane River was further examined by
Major Lockyer of the 57th regiment; Captain Miller was the first
Commandant. In 1839 it was determined to abandon Moreton Bay
as a penal settlement. Sir George Gipps laid out the plan of Brisbane
in 1841. On the 4th May, 1842, free settlement commenced; in the
same year Captain J. C. Wickham was appointed Police Magistrate
and afterwards Government Resident.

Provision for Separation. — The Act 5 and 6 Vic. c. 76 (30th
July, 1842) empowered Her Majesty, by letters patent, to separate
from New South Wales any part of the territory of that colony lying^
to the northward of 26° south latitude, and to erect such territory into
a separate colony or colonies. It was subsequently found that the
26th parallel was not far enough south to meet the requirements of a
new^ colony, and by the Act 13 and 14 Vic. c. 59 s. 34 it was declared
that upon the petition of the inhabitant householders of that part of
the territory of New South Wales lying to the northward of the 30^
of south latitude. Her Majesty might detach such territory from the
colony of New South Wales and erect it into a separate colony or
colonies. By the Constitution Statute and Act of New South Wales,
18 and 19 Vic. c. 54 (16th Jul}', 1855), the power previously' granted
to alter the northern boundary of New South Wales was distinctly
preserved, and Her Majesty was authorized, by letters patent, to ei-ect
into a separate colony or colonies any territory which might be so
separated from New South Wales. It was further enacted that Her
Majesty, by such letters patent or by Order in Council, might make
provision for the government of any such new colony, and for the
establishment of a legislature therein, in manner as nearly resembling
the form of government and legislature establi.shed in New South
Wales as the circumstances of the new colony would permit.

In 1843, the Moreton Bay settlers found themselves included in a
large electoral district constituted under the Act 5 and 6 Vic. c. 76
for the purpose of returning representative members to the new
Legislative Council of New South Wales. In 1851, Moreton Bay was
made a separate electoral district, and was assigned one elective
member in the Council of New South Wales; in 1853, it was assigned

COLONIAL GOVERNMENT IN AUSTRALIA. 73

an additional member. When the new Constitution of New South
Wales came into force in 1856 the Moreton Bay district was divided
into eight electorates, returning nine members to the Legislative
Assembly of New South Wales.

Sepakation. — Petitions in favour of separation from the parent
colony were signed and forwarded to the Imperial Government so
early as the year 1851. It was not until 1859 that it was decided to
grant a separation. On 6th June, 1859, letters patent were issued
erecting the Moreton Bay district into a separate colony, under the
name of Queensland, and appointing Sir George Ferguson Bowen to
be Captain-General and Governor-in-Chief thereof. The boundary
of the new colony was defined as a line commencing on the seacoast
at Point Danger, in latitude about 28° 8' south, running westward
alone the Macpherson and Dividing Ranges and the Dumaresq River,
to the Mclntyre River, thence by the 29th parallel of S. latitude to
the 141st meridian of E. longitude ; on the west, the 141st meridian
of longitude from the 29th to the 26th parallel, and thence the 138th
meridian north to the Gulf of Carpentaria, together with all the
adjacent islands, their members and appurtenances in the Pacific
Ocean. The Governor was authorized to appoint an Executive
Council to advise and assist him in the government of Queensland.
The Constitution of Queensland was embodied in an Order in Council
bearing the same date as the letters patent.

The Constitution. — The Order in Council provided that there
should be within the colony of Queensland a Legislative Council and
a Legislative Assembly, with the advice and consent of which Her
Majesty should have power to make laws for the peace, welfare, and
good government of the colony in all cases whatsoever. The Legis-
lative Council was to be composed of persons appointed by the
Governor, subject to the proviso that not less than four-fifths of the
members so appointed should consist of persons not holding any office
of emolument under the Crown except as naval or military officers.
The members of the Council were to hold their seats for the term of
their natural lives. The Legislative Assembly was to consist of
members elected by the qualified inhabitants of the colony. The
Assembly was to continue for five years from the day of the return
of the writs for choosing the same, subject, however, to be sooner
dissolved by the Governor.

The powers and functions granted to this legislature were sub-
stantially the same as those granted to New South Wales, Victoria,
South Australia, and Tasmania, and similar restrictions were imposed.
With reference to the relative powers of the two Houses in financial
matters, the Council could not originate any Bills for appropriating
any part of the public revenue, or for imposing any new rate, tax, or
impost. The Assembly could not originate or pass any vote, resolu-
tion, or Bill for appropriation of any part of the public revenue to
any purpose which should not have been first recommended by a
message from the Governor.

The formation of the new colony was proclaimed in the London
Gazette on 3rd June, 1859 ; Sir George Bowen arrived in Brisbane on
10th December, 1859. The Order in Council was published in the

74 HISTORICAL INTRODUCTION.

Queensland Government Gazette on 29tli December, 1859. The first
Parliament under the new Constitution was convened for the despatch
of business on 29th May, 1859. The first Responsible Ministry was
composed of the Hon. Robert George Wyndham Herbert, Colonial
Secretary; Mr. Ratcliffe Pring, Attorney-General; Mr. Robert Ramsay
McKenzie, Colonial Treasurer; Mr. Maurice Charles O'Connell, with-
out portfolio. The Act 24 and 25 Vic. c. 44 (22nd July, 1861) was
passed to validate and effectuate the Order in Council establishing the
Government of Queensland, and to remove all doubts as to the legality
of arrangements made by the Crown upon the erection of Queensland
into a separate colony. On 28th December, 1867, the Queensland
legislature passed an Act to consolidate the law relating to the Con-
stitution of the colony. The Act begins with a long recital, referring
to the Order in Council ordaining the Constitution ; the Act 5 and 6
Vic. c. 76, relating to the Royal assent to Bills, the disallowance of
Bills reserved, and the Governor's conformity to instructions; and the
Act 13 and 14 Vic. c. 59, relating to the reservation of Bills. It then
proceeds to re-enact the Order in Council, in the shape of a local
statute, in which is embodied, in addition to the Order in Council, all
the constitutional law of the colony passed up to that date.

Relations op the Two Houses. — In 1 885 a dispute arose between
the two branches of the legislature with reference to their relative
rights and powers concerning money Bills. The two Houses had
agreed to the following joint standing order : " In all cases, not
herein provided for, having reference to the joint action of both
Houses of Parliament, resort will be had to the rules, powers, and
practice of the Imperial Parliament." The folloAving questions were
referred to the Judicial Committee of the Privy Council for their
detei'mination : — (1) Whether the Constitution Act, 1 867, confers on
the Legislative Council powers co-ordinate with those of the Legisla-
tive Assembly in the amendment of Bills, including money Bills ? (2)
Whether the claims of the Legislative Assembly as set forth in its
message of 12th November, 1885, are Avell founded? The answer of
the Privy Council was as follows: — "Their Lordships agree humbly
to report to your Majesty that the first of these questions should be
answered in the negative, and the second in the affirmative."

Reforms. — The number of members of the Legislative Council of
Queensland is about 41 ; their qualifications and tenure being the
same as those of the members of the Legislative Council of New South
Wales. The duration of the Legislative Assembly was, in 1890,
reduced to three years. There are 72 members of the Assembly,
returned by 61 electorates; they are entitled to payment of £300 a
year each for their services. Every person qualified to vote at the
election of members of tho Assembly is qualified to be a member
thereof. The qualifications of electors are: male; 21 years; natural-
born or naturalized subjects ; resident in an electoral district for six
months. Owners of freehold estate of the clear value of £100, or £10
leaseholders, have the right to vote in every district in which the pro-
perty is situated.

COLONIAL GOVERNMEXT IN AUSTRALIA. 75

(7) NEW ZEALAND.

FocNDATiox. — In 1823, New Zealand was under the nominal
protection of the Government of New South Wales^ and the juris-
diction of the Supreme Court of that c-olony was extended to embrace
the crude groups of settlements which were gradually being formed
along the coasts of the islands. In 1826, Captain Herd ari-ired at
Hauraki Gulf with sixty settlers, but he had to abandon the attempt
to settle on account of the hostility of the natives. In 1831, thirteen
chiefs appealed to the English Government for protection against
traders and others with whom they had come into conflict. Accord-
ingly, in 1833, Mr. James Busby was appointed Resident at the Bay
of Islands, and shortly afterwards Lieutenant McDonell, R.X., was
appointed to act in a similar capacity at Hokianga. European
population continued to increase at the Bay of Islands until 1837,
Avhen the Government of New South Wales despatched Captain
Hobson to enquire into the lawless state of affairs at Kororareka, the
main settlement. No action was taken to establish a government in
any part of New Zealand until 1839, when the New Zealand Com-
pany sent a colonizing expedition, under the command of Colonel
William Wakefield, to Port Nicholson, where he took possession in
the name of the company, fired a royal salute, and hoisted " the New
Zealand flag." Other adventurers subsequently arrived at the same
locality and the town of Wellington was founded.

The Queen's Sovereignty. — This action of a private company
forced the hands of the Imperial Government, and it was then decided
to annex the islands to New South Wales. Letters patent were
prepared extending the jurisdiction of New South Wales so as to
include New Zealand, and Capttiin Hobson was appointed Lieutenant-
Governor under Sir George Gipps, the Governor of New South
Wales. Captain Hobson proceeded to the Bay of Islands, and
Kororareka, wdiich he named Russell, became the seat of government.
Captain Hobson convened a conference of native chiefs and British
subjects, at which he read his commission and a proclamation, assert-
ing the Queen's authority in the islands and declaring that transac-
tions in land which had not received confirmation by the Government
would be considered illegal. Subsequently Captain Hobson entered
into negotiations with the native chiefs of the north island, resulting
in the Treaty of Waitangi being signed by a number of chiefs,
ceding the sovereignty of New Zealand to Great Britain ; and in con-
sideration thereof they were guaranteed the preservation of their
proprietary interests in the soil, subject to the condition that the
Crown was to have the right of pre-emption — that is the first right of
purchase — of all Maori lands. On 21st May, 1840, the sovereignty
of the Queen over the islands was proclaimed.

Seiakatiox. — By the Act 3 and 4 Tic. c. 62 (7tli August, 1840),
Her Majesty was empowered to erect into a separate colony or colonies
any islands comprised within the colony of New South Wales. By
letters patent bearing date ICth November, 1840, Her Majesty erected
the islands of New Zealand into a separate colony, independent of

76 HISTORICAL INTRODUCTION.

New South Wales, and the Governor and certain other residents
of the colony were appointed a Legislative Council with power to make
laws for the peace, order, and good government thereof. The new
colony was proclaimed on 3rd May, 1841. Captain Hobson was the
first Governor of New Zealand, a post which he occupied until his
death in 1842. He was succeeded by Captain (afterwards Admiral)
R. Fitzroy. The seat of government was, on account of outrages
by the natives, removed from Russell to Auckland. Governor Fitzroy
was succeeded in 1845 by Captain (afterwards Sir George) Grey.

In 1846 an Act for the Government of New Zealand (9 and 10 Vic.
c. 103) Avas passed by the Imperial Parliament. This Act contained
a scheme for the division of the colony into two provinces, one styled
New Ulster, comprising almost the whole of the northern island ; and
the other New Munster, comprising the middle and southern islands ;
each province having a separate Lieutenant-Governor, and a separate
Executive Council charged with the administration of local affairs.
For the whole of the colony there was to be a Governor-in-Chief and
a Legislative Council having power to make laws of general applica-
tion. This plan of government, however, did not work satisfactorily,
and the operation of the Act was suspended. The movement in
favour of Representative and Responsible Government made consider-
able progress during Governor Grey's tei'm of office. In 1851 he
recommended the Imperial Government to pass an amending law
granting a new Constitution in place of that embodied in the suspended
Act.

The New Constitution. — On 30th June, 1852, the Act 15 and IG
Vic. c. 72 came into force in New Zealand, under which a system of
provincial and general government was inaugurated. Six provinces
were established, viz., Auckland, Canterbury, New Plymouth, Nelson,
Otago, and Wellington, the number being subsequently increased to
nine. Each province was to be ruled by a Superintendent and a pro-
vincial Council. The Superintendent was to be elected by the qualified
inhabitants of each province voting as one body ; each Council was to
consist of not less than nine members elected by the qualified inhabi-
tants of its province voting in districts. The Superintendent, with
the advice and consent of the Council of each province, was empowered
to make all such laws and ordinances as might be required for the
peace, order, and good government of the province, provided that the
same were not repugnant to the law of England, or to the law of the
colony otherwise enacted. Generally speaking the powers and func-
tions of the Councils were of a local and municipal character. The
Superintendent could, according to his discretion, assent to a Bill
passed by the Council of his province, or he could withhold his assent
or reserve the Bill for the signification of the Governor's pleasure.

The Act further provided that there should be within the colony
of New Zealand a General Assembly, to consist of the Governor, a
Legislative Council, and a House of Representatives. Members of
the Council, of whom there were to be not less than 10, were to be
appointed by the Queen ; they wei-e to hold their seats for life, sub-
ject to resignation, forfeiture for non-attendance, and other disabilities.
The House of Representatives was to consist of not less than 24 nor

COLONIAL GOVERNMENT IX AUSTRALIA. 77

more than 42 members^, elected by the qualified inhabitants of the
colony. Each House of Representatives was to continue in existence
for five years, unless sooner dissolved by the Governor. The General
Assembly was to have power to make laws for the peace, order, and
^ood government of New Zealand, provided that no such laws should
be repugnant to the law of Eugland, and that Bills passed by the
General Assembly should control and supersede any law or ordinance
in any way repugnant thereto passed by the provincial councils.
Under subsequent Imperial legislation the powers and functions of
the General Assembly of New Zealand were, in common with those of
the Parliaments of Australia, greatly enlarged.

Sir George Grey was, on 13th September, 1852, appointed
Governor of the colony under the new Constitution; he, however,
was appointed Governor of Cape Colony before the arrangements
were completed for the inauguration of the new Representative
system. To Colonel Wynyard, the officer commanding the Imperial
troops, was assigned the important task of bringing the new machinery
of government into operation.

Responsible Goverxmext. — The first session of the General
Assembly was opened at Auckland on 25th May, 1854. Great dis-
satisfaction was expressed when it was found there was no provision
in the Constitution, or in the Governor's instructions, for the introduc-
tion of Responsible Government. The official members of the old
Executive Council continued to hold office, although none of them
were members of the new Parliament, which had no control of the
Executive except by the refusal of supplies. The Constitution did
not make it obligatory that official members of the Executive Council
should be members of the legislature. The Governor infonned the
House of Representatives that he had no power to supersede the Exe-
cutive Council which was in existence before the Constitution was
passed. During the first three months of the session no business was
done by the new Parliament. The Governor then sent a message
informing the Parliament that he would urge the Imperial Govern-
ment to amend the Constitution by making provision for the appoint-
ment of Responsible Ministers. The Parliament was then prorogued
for a fortnight. In the meantime four members of the House of
Representatives were made members of the Executive Council. Upon
the re-opening of Parliament an amendment to the Address-in-Reply
was carried, in the House of Representatives, by 22 votes to 4, declar-
ing that the House had no confidence in a mixed Executive consisting
partly of members of Parliament and partly of Government officials.
The four new ministers then resigned. As the result of the action of
the House of Representatives the Governor subsequently received
authority from the Imperial Government to appoint Responsible
Ministers, subject to the condition that the official members of the old
Executive Council were to be granted pensions to which they were
entitled by Imperial regulations.

In September, 1855, Colonel Gore Browne became Governor of
New Zealand, and in his first message to the General Assembly he
communicated the desire of Her Majesty's Government that the colony-
should enjoy "the fullest measure of self-government which is con

78 HISTORICAL INTRODUCTION.

sistent with its allegiance to the British Crown/' and that accordingly
he would, as speedily as possible, " carry out in its integrity the prin-
ciple of ministerial responsibility, being convinced that any other
arrangements would be ineffective to preserve the harmony between
the legislative and executive branches of the government, which is so
essential to the successful conduct of public affairs/^ In April, 1856,
the Governor commenced negotiations with one of the leaders of the
House of Representatives for the formation of his first Government,
with the result that the Bell-Sewell Ministry took office, which they
held from 7th May to 20th May, 1856; they were succeeded by the
Fox Ministry, which held office fi'om 20th May to 2nd June, 1856,
which was followed by the Stafford Ministry, holding ofl&ce from 2nd
June, 1856, to 12th July, 1861.

The system of Provincial Government remained in force as an
integral part of the Constitution until the 1st November, 1876, when
it was abolished by an Act of the General Assembly, and most of the
powers and functions previously exercised by Superintendents and
Councils were vested in municipal institutions of the ordinary type.
In 1865 the seat of Government was, by an Act of the General
Assembly, removed from Auckland, and, on the recommendation of
certain commissioners, appointed by the Australian Governors at the
request of the General Assembly, Wellington became the capital.

Reforms. — The Constitution of the Legislative Council was altered
by an Act which came into operation on 17th September, 1891; under
which all members added subsequently to that date were appointed
for the limited period of seven years instead of for life. They are,
however, eligible for re-appointment. Members of the Council are
paid £150 per year for their services. For membership of the House
of Representatives no property qualification is required, and every
adult person whose name is properly registered is entitled to vote at
the election of members of the House. The House consists of 74
members, including four Maori representatives, who are paid at the
rate of £240 per year. Its duration from the return of the writs was,
in 1879, reduced from five years to three years, subject to being
sooner dissolved by the Governor.

THE FEDERAL MOVEMENT IX AUSTRALIA.

THE FEDERAL MOVEMENT IN AUSTRALIA.

(1) THE GER:N[ of FEDERATION.

The Beginnings op Sepaeation. — Early Australian history, natur-
ally enough, is a history of isolation; of the separate progress of widely
distant coast settlements, and their endeavours to become self-sufficient
and to obtain independent self-governing institutions. As we have
already seen, Xew South Wales once comprised (nominally) the whole
of the continent of Australia east of the 129th meridian (the present
eastern boundary of "Western Australia), together with the "adjacent
islands," and Tasmania. But for many years it meant little more
than the settlement at Sydney. Hobart was founded in 1803, and
Moreton Bay in 1824, both being administered from Sydney. The
first actual separation was in 1825, when Van Diemen's Land was
erected into a separate colony. Western Australia in 1829, and
South x\ustralia in 1836, were also founded as separate colonies. The
mainland of Australia was thus parcelled out into three great
divisions, while the island of Van Diemen's Land formed a fourth.
The Port Phillip settlement, definitely colonized in 1836, and the
Moreton Bay settlement, continued to form part of Xew South Wales.
In 1839 Xew Zealand was also proclaimed a dependency of Xew South
Wales; but in 1841 it was proclaimed as a separate colony.

Intercolonial Reciprocity Attempted. — The actual isolation of
these settlements prevented any need of union being felt ; and the
settlers were too absorbed in their daily needs to give much attention
to the political wants of the future. Xevertheless some early attempts
were made to secure reciprocal freetrade between the colonies —
attempts which were unfortunately thwarted by unsympathetic Secre-
taries of State. All the colonies imposed import duties for purposesji
of revenue; and as trade developed, these duties began to wear a pro- '
tective aspect. For many years after the separation of Van Diemen's
Land it was the practice in Xew South Wales — contrary to the strict
letter of the law — to admit imports from Van Diemen's Land free,
though levying duties on similar goods from elsewhere; whilst Van
Diemen's Land reciprocated by inserting in her Customs Duties Acts
an exemption in favour of imports from Xew South Wales. The
separation of Xew Zealand made the need of intercolonial freetrade
more apparent ; and in 1 842 the Legislative Council of Xew South.
Wales passed an Act to permit goods the produce or manufacture
of Xew Zealand or Van Diemen's Land to be imported free of
duty. In debate the Collector of Customs suggested that, to prevent
jealousy, the exemption should be extended to South Australia
also, though the trade with that colony was as yet inconsiderable.
The suggestion, however, was not adopted. In fact South Australia.

80 HISTORICAL INTRODUCTION.

as tlie pet colony of the Colonial Office^ was not regarded with too
much favour in New South Wales.

This attempt to introduce an instalment of intercolonial freetrade
was frustrated by the disallowance of the Act. Lord •Stanley, the
Secretary of State for the Colonies, first sent a circular despatch,
dated 28th June, 1843, to the Governors of all the colonies, dealing
generally with the subject of differential duties. He took the ground
that a policy of discrimination would involve the commercial treaties
and the foreign relations of Great Britain, and could not be satisfac-
torily dealt with except by the Home Government; and stated roundly
that "Her Majesty's Government decidedly object in principle to the
, assumption by the colonial legislatures of the office of imposing
differential duties on goods imported into the respective colonies."
In a subsequent despatch to the Governor of New South Wales,
announcing the disallowance of the Act, Lord Stanley further
objected to the principle of differential duties on the ground that they
would lead to retaliation, and to a system of protection and
preferences.

Governor Fitzroy's Suggestion. — Intercolonial barriers were
thus allowed to grow up, and the fiscal policies of the colonies
gradually drifted apart. In 1843, we find the Legislative Council of
New South Wales carrying, on the motion of Mr. Richard Windeyer,
a resolution asking for the disallowance of certain Acts of the
Legislature of Van Diemen's Land, imposing a duty on tobacco and
coal imported from New South Wales. And in 1846 the Legislative
Council of Van Diemen's Land passed an Act abolishing the exemp-
tion of imports from New South Wales, and thus subjecting them to
an ad valorem duty of 15 per cent. This step was taken ostensibly to
comply with Lord Stanley's wishes ; but really (according to Sir John
Eardley Wilmot, the Governor of Van Diemen's Land) to secure
protection to the local farmers. Once more, on Mr. Windeyer's
motion, the Legislative Council of New South Wales protested, asking
that the Act should be disallowed ; and Governor Fitzroy, in a
despatch dated 29th September, 1846, forwarding this resolution to
the Colonial Office, made the first recorded suggestion of the need of
some central intercolonial authority — a suggestion which we may
may shrewdly suspect to have been inspired by his Colonial Secretary,
Mr. E. Deas-Thomson. He wrote : — " I feel much diffidence in
offering an opinion so soon after my arrival in this part of the world ;
but it appears to me that, considering its distance from Home, and
the time that must elapse before the decision of Her Majesty's
Government upon measures passed by the Legislatures of these
colonies can be obtained, it would be very advantageous to their
interests if some superior functionary were to be appointed, to whom
all measures adopted by the local Legislatures, affecting the geiieral
interests of the mother country, the Australian colonies, or their inter-
colonial trade, should be submitted by the officers administering the
several Governments, before their own assent is given to them."

THE FEDERAL MOVEMENT IN AUSTRALIA. 81

(2) EARL GREY'S SCHEMES.

Earl Geey's Despatch. — Meanwhile the agitation for the
separation of the Port Phillip district, and for more completely
representative institutions, was going on ; and Lord John Russell's
administration had begun, with Earl Grev as Secretary of State for
the Colonies. Earl Grey, in his famous despatch of 31st July, 1847,
announced his Government's intention to bring in a Bill to erect the
southern part of Xew South Wales into a separate colony, to be
called Victoria. Incidentally, he foreshadowed some changes in the
Constitution of Xew South Wales. He proposed to establish a
Legislature of two Houses instead of one, and made the startling
suggestion that the House of Assembly should be elected by District
Councils, or municipal bodies, instead of directly by the people. But
to us to-day the most interesting part of his constitutional scheme
was that which at the time received the least attention — the idea,
previously hinted at by Governor Fitzroy, of a General Assembly to
deal with matters of common Australian interest. We must give
Earl Grey credit for recognizing that besides municipal and provincial
interests on the one hand, which would be the care of the local
Legislatures, and Imperial interests on the other hand, which would
be the care of the Imperial Government, there must be general
Australian interests which would need to be regulated by a central
Australian authority. He wrote accordingly the first recorded state-
ment of the case for Australian union : —

" The principle ot local self-government (like every other
political principle) must, when reduced to practice, be qualified by
many other principles which must operate simultaneously with it.
To regulate such afEairs with reference to any one isolated rule or
maxim would, of course, be an idle and ineffectual attempt. For
example, it is necessary that, while providing for the local manage-
ment of local interests, we should not omit to provide for a central
management of all such interests as are not local. Thus, questions
co-extensive in their bearing with the interests of the Empire at
large are the appropriate province of Parliament.

" But there are questions which, though local as it respects the
British possessions in Australia collectively, are not merely local as it
respects any one of those possessions. Considered as members of the
same Empire, those colonies have many common interests, the
regulation of which, in some uniform manner and by some single
authority, may be essential to the welfare of them all. Yet in some
cases such interests may be more promptly, effectively, and satis-
factorily decided by some authority within Australia itself than by
the more remote, the less accessible, and in truth the less competent
authority of Parliament."

And in due course he went on to outline his project for union : —

" Some method will also be devised for enabling the various
legislatures of the several Australian colonies to co-operate with each
other in the enactment of such laws as may be necessary for
regulating the interests common to those possessions collectively.

82 HISTORICAL INTRODUCTION.

sucli, for example, are the imposition of duties of import and export,
the conveyance of letters, and the formation of roads, railways, or
other internal communications traversing any two or more of such

colonies The subject of your own despatch of the 29th

September, 1846, viz., the imposition of discriminating duties, in any
Australian colony, on goods, the growth, produce, or manufacture of
any other Australian colony, will also be adverted to, and provided
for, in that part of the contemplated Act of Parliament whicb will
relate to the creation of a central legislative authority for the whole
of the Australian colonies."

Eeception op the Despatch. — This despatch was greeted in New
South Wales with a storm of indignation. The colonists resented the
idea of constitutional changes as to which they had not been consulted,
and were especially alarmed at the suggestion of indirect election,
which would take away the instalment of representative institutions
which they had lately won. Public meetings were held everywhere
to express " apprehension and dismay " at the proposed changes, and
to protest against any change about which the people of the colony
had not been consulted. But amidst all this uproar very little was-
said about the federal proposal. When mentioned at all, it was
usually in a tone of mild approval — as being unobjectionable, and
possibly even useful, but of little immediate importance.

In May, 1848, Mr. William Charles Wentworth brought before
the Legislative Council of New South Wales a set of resolutions
affirming that the separation of Port Phillip might be effected without
any material change in the Constitution of New South. Wales, and
protesting generally against Earl Grey's proposals. One of these
resolutions Avas "That the only useful amendment in our present Con-
stitution suggested in the despatch is the proposition relative to a
Congress from the various colonial legislatures in the Australian
colonies, with power to pass laws on intercolonial questions; that such
a Congress, if not too numerous, might be got together for short
periods at certain intervals." A set of resolutions framed by a Com-
mittee of the Council was ultimately substituted, and these were con-
sidered in Committee. One of them, which was passed "almost
without remark," declared "That this Council cannot acquiesce in any
plan of an intercolonial Congress, in which the superior wealth and
population of New South Wales, as compared with the other colonies
of the Australian group, both individually and collectively, shall not
be fully recognized as the basis of representation." These resolutions,
however, never got beyond the Committee stage. Mr. Edward Deas-
Thomson, Mr. Robert. Lowe (afterwards Viscount Sherbrooke), and
■ others, wished to express approval of the proposal for a two-chambered
legislature; and in spite of the protests of Wentworth, who com-
plained that this introduced a debatable detail into a question of
constitutional principle, they succeeded in carrying it. On this rock
the Council split. On Wentworth's motion, the resolutions were
shelved by leave being obtained to sit again that day six months.
Consequently, though the wish to protest was unanimous, no protest
was ever made by the Council.

The "apprehension and dismay," however, had their effect. In a.

THE FEDERAL MOVEMENT IX AUSTRALIA. 83

despatch of 3ist July, 18-iS, Earl Grey disclaimed any wish to impose
unwelcome constitutional changes on the colonies. The project of
making District Councils serve as constituencies to the Legislature
would be given up ; and the division of the Legislature into two
Houses would be left for the colonists themselves to effect whenever
they wished. The idea of an intercolonial Legislature, however, was
adhered to. Earl Grey pointed out that communication by land
between New South Wales and Port Phillip was already completely
established; that the trade of Port Phillip with South Australia was
becoming not inconsiderable ; and that the intercourse would yearly
increase. If these portions of Australia were under independent
legislatures, tariff differences would inevitably grow up. The extreme
inconvenience of this would necessitate some means of providing for
a uniform commercial policy, in order to give free scope for the
development of their resources and their trade. How this could best
be done was a question of some difficulty, which he reserved for more
mature consideration.

Committee of the Privy Council. — The details of Earl Grey's
scheme were soon forthcoming. In 1849 a Committee of the Privy
Council — the Committee on Trade and Plantations — was commissioned
to enquire into the constitutional changes which it might be advisable
to make in the Government of the Australian colonies. (For the
nature and history of this Committee, see Jenks' Government of
Victoria, p. 3.) The Committee brought up a report in which it
recommended that the southern part of Xew South Wales should be
established as a separate colony, to be called Victoria ; that each of
the colonies of Xew South Wales, Victoria, South Australia, and Van
Diemen's Land should have a legislature of one House, of whose
members one-third were to be nominated by the Crown, and two-thirds
elected; and that the Legislature of each colony should be empowered
to alter its own Constitution. On the subject of a uniform tariff and
a federal legislature the Committee reported as follows : —

" There yet remains a question of considerable difficulty. By far
the larger part of the revenue of the Australian colonies is derived
from duties on customs. But if, when Victoria shall have been
separated from New South Wales, each province shall be authorized
to impose duties according to its own wants, it is scarcely possible but
that in process of time differences should arise between the rates of
duty imposed upon the same articles in the one and in the other of
them. There is already such a difference in the tariffs of South Aus-
tralia and New South Wales, and although, until of late, this has been
productive of little inconvenience, yet with the increase of settlers on
either side of the imaginary line dividing them, it will become more
and more serious. The division of New South Wales into two colonies
would further aggravate this inconvenience, if the change should lead
to the introduction of three entirely distinct tariffs, and to the conse-
quent necessity for imposing restrictions and securities on the import
and export of goods between them. So great indeed would be the
evil, and such the obstruction of the intercolonial trade, and so great
the check to the development of the resources of each of these
colonies, that it seems to us necessary that th6re should be one tariff

84 HISTORICAL INTRODUCTION.

common to them all, so that goods might be carried from the one into
the other with the same absolute freedom as between any two adjacent
counties in England.

'* We are further of opinion that the same tariff should be estab-
lished in Van Diemen's Land also, because the intercourse between
that island and the neighbouring colonies in New Holland has arisen
to a great importance and extent, and has an obvious tendency to
increase. Yet fiscal regulations on either side of the intervening
strait must of necessity check, and might perhaps to a great extent
destroy, that beneficial trade.

" If the duties were uniform, it is obvious there need be no
restrictions whatever imposed upon the import or export of goods
between the respective colonies, and no motive for importing into one
goods liable to duty which were destined for consumption in another;
and it may safely be calculated that each would receive the proportion
of revenue to which it would be justly entitled, or at all events that
there would be no departure from this to an extent of any practical
importance.

"Hence it seems to us that a uniformity in the rate of duties
should be secured,

" For this purpose we recommend that a uniform tariff should be
established by the authority of Parliament, but that it should not take
effect until twelve months had elapsed from the promulgation in the
several colonies of the proposed Act of Parliament. That interval
would afford time for making any financial arrangements which the
contemplated change might require in any of them, and by adopting
the existing tariff of New South Wales (with some modifications, to
adapt it to existing circumstances) as the general tariff for Australia,
we apprehend that there would be no risk of imposing upon the
inhabitants of these colonies a table of duties unsuited to their actual
wants. We should not, however, be prepared to offer this recommen-
dation, unless we proposed at the same time to provide for making
any alteration in this general tariff which time and experience may
dictate, and this we think can only be done by creating some
authority competent to act for all those colonies jointly. .

" For this purpose we propose that one of the Governors of the
Australian colonies should always hold from Your Majesty a com-
mission constituting him the Governor-General of Australia. We
think that he should be authorized to convene a body to be called the
General Assembly of Australia, at any time and at any place within
Your Majesty's Australian dominions which he might see fit to
appoint for the purpose. But we are of opinion that the first
convocation of that body should be postponed until the Governor-
General should have received from two or more of the Australian
legislatures addresses requesting him to exercise that power.

" We recommend that the General Assembly should consist of
the Governor-General, and of a single House, to be called the House
of Delegates. The House of Delegates should be composed of not
less than 20 nor of more than 30 members. They should be elected
by the legislatures of the different Australian colonies. We subjoin
a schedule explanatory of the composition of this body, that is, of

THE FEDERAL MOVEMENT IN AUSTRALIA. 85

the total number of delegates, and of the proportions in which each
colony should contribute to that number.

" We think that Your Majesty should be authorized to establish
provisionally, and in the first instance, all the rules necessary for the
election of the delegates, and for the conduct of the business of the
General Assembly, but that it should be competent for that body to
supersede any such rules and to -substitute others, which substituted
rules should not, however, take effect until they had received Your
Majesty's sanction.

" We propose that the General Assembly should also have the
power of making laws for the alteration of the number of delegates,
or for the improvement in any other respect of its own constitution.
But we think that no such law should come into operation until it had
actually been confirmed by Your Majesty.

" We propose to limit the range of the legislative authority of the
General Assembly to the ten topics which we proceed to enumerate.
These are : —

1. The imposition of duties upon imports and exports.

2. The conveyance of letters.

3. The formation of roads, canals, or railways, traversing any

two or more of such colonies.

4. The erection and maintenance of beacons and lighthouses.

5. The imposition of dues or other charges on shipping in every

port or harbour.

6. The establishment of a General Supreme Court, to be a Court

of original jurisdiction or a Court of Appeal for any of the
inferior Courts of the separate provinces.

7. The determining of the extent of the jurisdiction, and the

forms and manner of proceeding of such Supreme Court.

8. The regulation of weights and measures.

9. The enactment of laws affecting all the colonies represented

in the General Assembly, on any subject not specifically
mentioned in the preceding list, but on which the General
Assembly should be desired to legislate by addresses for that
purpose presented to them from the Legislatures of all
those colonies.
10. The appropriation to any of the preceding objects of such
sums as may be necessary, by an equal percentage from the
revenue received in all the Australian colonies, in virtue of
any enactments of the General Assembly of Australia.
" By these means we apprehend that many important objects
would be accomplished which would otherwise be unattainable, and
by the qualification which we have proposed, effectual security would,
we think, be taken against the otherwise danger of establishing a
central legislature in opposition to the wishes of the separate legis-
latures, or in such a manner as to induce collisions of authority
between them. The proceedings also of the Legislative Council of
New South Wales, with refei-ence to the proposed changes in the
Constitution, lead us to infer that the necessity of creating some such
general authority for the Australian colonies begins to be seriously
felt."

86 HISTORICAL INTRODUCTION.

The schedule referred to was as follows : —

"Each colony to send two members, and each to send one
additional member for every 15,000 of the population according to
the latest census before the convening of the House.

" On the present population the numbers would be as follows : —

Population by last

Number of

Census.

Members.

New South Wales

155,000

Victoria ...

33,000

Van Diemen's Land (de-

ducting convicts) . . .

46,000

South Australia ,

31,000

265,000 25

The Australian Colonies Government Bill.^ — This report was
adopted by the Privy Council, and Earl Grey forwarded it to the
Governors of the three colonies with a despatch dated 24th May,
1849, in which he announced that a Bill, passed in strict accordance
with the recommendations of the Committee, would be introduced
forthwith into Parliament. This was done ; and the " Bill for the
Better Government of the Australian Colonies," as first introduced in
1849, not only provided for the separation of Victoria, and for the
establishment of a General Assembly on the lines of the report, but
actually prescribed, and set out in a schedule, a uniform tariff for
the four colonies of New South Wales, Victoria, Van Diemen's Land,
and South Australia.

The colonies, however, did not take kindly to Earl Grey's well-
meant constitutional schemes and " didactic despatches." The
Legislature of New South Wales, strangely enough, held its peace
altogether, after the shelving of the discussion mentioned above.
But the Legislative Council of South Australia, on 15th December,
passed a resolution condemning the proposed General Assembly for
the following reasons : —

1. There is a great dissimilarity in the pursuits and interests of

the several provinces.

2. The overwhelming preponderance that the larger colonies

would have in the Assembly would be greatly injurious to
the lesser.

3. The Council cannot see any point upon which benefit would

accrue to any of the provinces by the establishment of such

an Assembly.
This opinion was endorsed by a public meeting held in Adelaide
on 21st December to protest against the proposed constitutional
changes. And from Tasmania Governor Denison, in a despatch of
28th December, though agreeing that " an absolute and unrestricted
freedom of intercourse is most advantageous," expressed a fear that
the proposed uniform tlariff would operate injuriously on the revenue
of his colony.

Nor was the reception of the scheme in England more favourable.
The Parliamentary Agent for New South Wales, Mr. Francis Scott,
included the proposed General Assembly in a sweeping disparagement

THE FEDERAL MOVEMENT IX AUSTRALIA. 87

of the whole scheme (see despatch published in the Sydney Morning
Herald, 26th Xoverrber, 1850) ; whilst a writer in the Spectator (9th
May, 1850; reprinted in the Sydney Morning Herald, 30th October)
waxed sarcastic over the presumption of Downing-street in venturing
to frame a tariff to suit all the Australian colonies. The Bill was
dropped for the session; and in a despatch of 18th August, 1850,
Earl Grey wrote that it would be reintroduced as soon as Parliament
reassembled, but with one important modification. The provision for
'•' a uniform tariff to be established bj the Act itself, and unalterable
except by the General Assembly when convoked," would be omitted.
He emphasized the importance of intercolonial f reetrade, but admitted
that "enquiry and discussion have rendered it evident that the pro-
posed uniformity could not be carried into practical effect without a
variety of subsidiary arrangements which could only be well con-
sidered and matured on the spot."

The Bill, therefore, when reintroduced in 1850, did not impose a
uniform tariff, but merely empowered the General Assembly to frame
one. The scheme was also modified in other respects. The General
Assembly was only to take effect as to such colonies as should signify
their desire for its establishment. And one remarkable addition was
made to the list of its powers by enabling it to make laws "for selling,
demising, granting licenses for the occupation of, and otherwise dis-
. posing of, waste lands of the Crown in the colonies represented in
such General Assembly, and for appropriation of money to arise from
the disposition."

Both in the Commons and in the Lords the federal clauses were
critically discussed, and the debates are interesting because they show
a keen appreciation of the importance of the question. Both sides
of the argument were well represented. On the one hand, the advan-
tages of uniform legislation were urged; on the other, the measure
was denounced as "republican," and as a step towards a declaration
of independence. It was objected that the large colonies would over-
whelm the small — to meet which argument the basis of representation
was altered in Committee by increasing the element of equality, at the
expense of the proportional element ; that is to say, by allowing each
colony four members, and an additional one for every 20,000 of popu-
lation. And then it was objected that the small colonies would
dominate the large. The weightiest arguments against the clauses,
however, were that they were not asked for, and indeed were pro-
tested against, by the colonies, and that the scheme was premature.
Eai'l Grey contended that these objections were met by the provision
which left each colony free to join the General Assembly or not ; and
he claimed that within a few years such an Assembly would probably
be found desirable, though he admitted that it was not likely to be
established at once. The clauses were carried in Committee in both
Houses; but the opposition which they had aroused ultimately induced
the Government to abandon them before the Bill became law. The
separation of Victoria, and the establishment of the new Constitutions,
were accordingly effected without any provision for an intercolonial
legislature.

Despatch Accompanying Constitution. — When sendinsr out the

88 HISTORICAL INTRODUCTION.

new Constitutional Act (13 and 14 Vic. c. 59), Earl Grey wrote as
follows of the federal clauses : —

" 24. The clauses giving power for the establishment, under cer-
tain circumstances, of a General Assembly for two or more of the
colonies were omitted from the Bill in its progress through the House
of Lords. This omission was not assented to by Her Majesty's
Government in consequence of any change of opinion as to the
importance of the suggestions on this point which are contained in
the report of the Committee of the Privy Council. But it was found
on examination that the clauses in question were liable to practical
objections, to obviate which it would have been necessary to introduce,
amendments entering into details of legislation which there were no
means of satisfactorily arranging without further communication with
the colonies.

" 25. Her Majesty's Government have been the less reluctant to
abandon, for the present, this portion of the measure which they pro-
posed, inasmuch as even in New South Wales it appeared, as far as
they could collect the opinion which prevails on the subject, not to be
regarded as of immediate importance, while in the other colonies
objections had been expressed to the creation of any such authority.

"26. I am not, however, the less persuaded that the want of
some such central authority to regulate matters of common importance
to the Australian colonies will be felt, and probably at a very early
period ; but when this want is so felt, it will of itself suggest the
means by which it may be met. The several legislatures will, it is
true, be unable at once to give the necessary authority to a General
Assembly, because the legislative power of each is confined of
necessity within its territorial limits; but if two or more of these
legislatures should find that there are objects of common interest for
which it is expedient to create such an authority, they will have it in
their power, if they can settle the terms of an arrangement for the
purpose, to pass Acts for giving effect to it, with clauses suspending
their operation until Parliament shall have supplied the authority that
is wanting. By such Acts the extent and objects of the powers which
they are prepared to delegate to such a body might be defined and
limited with precision, and there can be little doubt that Parliament,
when applied to in order to give effect to an arrangement so agreed
upon, would readily consent to do so." (Despatch, 30th August,
1850; N.S.W. Votes and Proc, 1851, p. 37.)

Reasons op Failure. — It is matter for regret that this opportu-
nity was missed of sliding, from the first, into some form of federal
union; but Earl Grey's scheme was foredoomed to failure. In the
first place, it was unfortunate in its author. The colonists, struggling
for self-governing institutions, had many grievances against the
Colonial Office; and Earl Grey, in particular, had made himself
intensely unpopular by his well-meant, though injudicious, attempts
to remodel their institutions. Consequently the merits of this par-
ticular proposal hardly received due recognition. But apart from
this, it is probable that the colonies, though recognizing the absti-act
advantages of a partial union, Avould have rebelled against any con-
crete proposal that could have been submitted. Each colony was

THE FEDERAL MOVEMENT IN AUSTRALIA. 89

chiefly beut on securing absolute power to manage its own affairs, and
the importance of union was rather future than present. The whole
ineffectual episode, however, is interesting for two reasons. In the
first place, it showed that a satisfactory scheme of Australian union
must be worked out in Australia, not in England. And in the second
place, the different criticisms made upon the scheme in the different
colonies afford an instructive parallel with the anti-federal objections
of our own time, and show that the real difiiculties of the problem
were inherent from the first. Then, as now, Tasmania was more
dependent than New South Wales upon a revenue tariff. Then, as
now. New South Wales claimed predominance, and the smaller
colonies feared being swallowed up. By constructing the General
Assembly on a basis intermediate between equal representation and
proportional representation. Earl Grey had done the best he could with
a single Chamber ; but to be effectual, each basis required a separate
Chamber, and probably a two-chambered Federal Legislature would
have been out of the question at that time. The Home Government
can hardly be blamed for deciding that the problem was one which
they could not solve, but which the colonies must be left to work out
for themselves.

The Governor-General. — Earl Grey, however, did not give up
his federal idea altogether. The establishment of a Federal Legisla-
ture was unavoidably postponed; but something like a Federal
Executive could be created without statutory authority. Accordingly
Earl Grey sent out to Sir Charles Fitzroy, the Governor of New South
Wales, four separate Commissions appointing him Governor of New
South Wales, Van Diemen's Land, South Australia, and Victoria
respectively ; and also another Commission appointing him "Governor-
General of all Her Majesty's Australian possessions, including the
colony of Western Australia." The Queen's representatives in the
three colonies of Van Diemen's Land, South Australia, and Victoria
were given the title of " Lieutenant-Governors " (Jeuks' Govern-
ment of Victoria, p. 155). In an accompanying despatch, dated 3rd
January, 1851, it was explained that the Governor-General was not
expected to interfere with matters affecting merely the internal
administration of the other colonies. But the expanding interests
and increasing relations of the colonies with each other would require
concert on a variety of subjects, and the Governor of the mother
colony ought to have a general authority to superintend the initiation
and foster the completion of measures calculated to promote the
common welfare. The Lieutenant-Governors would be instructed to
communicate with the Governor-General as to all measures affecting
intercolonial interests, and to be guided by his judgment on all such
matters. Especially, as the relations of Victoria with Xew South
W ales would necessarily be intimate, there should be no alteration of
the import duties of either colony without previous communication
between them. If any necessity should arise for the Governor-
General to visit any of the colonies of Van Diemen's Land, South
Australia, or Victoria, he would, by virtue of his commission as
Governor of such colony, supersede the Lieutenant-Governor, and
assume the Govei'nment during his stay (Pari. Papers, 1851, xxxv., 40).

90 HISTORICAL INTRODUCTION.

The Governor of New South Wales was thus constituted a sort
of advisory over-lord of the whole of Australia ; and was also
empowered in an emergency to exercise the functions of Governor of
any of the three colonies of Van Diemen's Land, South Australia
and Victoria. In other words, a kind of Federal Executive was, in
name at least, actually constituted. But without a Federal Legisla-
ture the Governor-Generalship was little more than an empty title.
The visiting power was never used at all — and indeed was never
meant to be used except in some unforeseen emergency. When Sir
Charles Fitzroy's term ended, the system of giving the Governor of
New South Wales separate Commissions as Governor of the other
colonies was dropped, and the Lieutenant-Governors were raised to
the rank of full-blown Governors. The title of Governor-General
continued to be borne by the Governor of New South Wales until the
Governorship of Sir John Young in 1861, but it seems to have had
little practical value. The only notable occasion on which the
Governor-General concerned himself with intercolonial interests was
when Sir W. Denison (then Governor of New South Wales)
endeavoured in 1855 to secure harmony between the tariffs of New
South Wales and Victoria. Shortly afterwards responsible govern-
ment was inaugurated in both colonies, and the Commission of
Governor-General fell into disuse. Its last shred of utility was, of
course, gone when the several Governors ceased to have active
control of the administration.

(.3) THE CONSTITUTIONAL COMMITTEES OF 1853.

Meanwhile suggestions for federal union had come from states-
men in both New South Wales and Victoria. The colonists had been
deeply disappointed with the Constitutions of 1850 (13 and 14 Vic.
c. 59), and continued to agitate for the grant of responsible govern-
ment similar to that which had been conceded to the Canadian
provinces between 1841 and 1848. The Legislatures began by
" Remonstrances," but soon proceeded to the more practical work of
framing the desired Constitutions for themselves, according to the
powers recently conferred on them.

Wentworth's Constitutional Committee. — In New South Wales,
a Select Committee of the Legislative Council was appointed in 1853,
on Wentworth's motion, to prepare a new Constitution. On 28th
July it brought up its report, with a draft Constitution Bill annexed.
The Bill itself contained no federal provision ; but the report
concluded with the following recommendation: —

" One of the more prominent legislative measures required by
this colony, and the colonies of the Australian group generally, is the
establishment at once of a General Assembly, to make laws in relation
to the intercolonial questions that have arisen, or may hereafter arise,
among them. The questions which would claim the exercise of such
a jurisdiction appear to be as follows : — •

THE FEDERAL MOVEMENT IN AUSTRALIA. 91

1. Intercolonial tariffs^ and coasting trade.

2. Railways, roads, canals, &c., running through any two of the

colonies.

3. Beacons and lighthouses on the coast.

4. Intercolonial penal settlements.

5. Intercolonial gold regulations.

6. Postage between the said colonies.

7. A general Court of Appeal from the courts of such colonies.

8. A power to legislate on all other subjects which may be

submitted to them by addresses from the Legislative
Councils and Assemblies of the other colonies; and to
appropriate to any of the above objects the necessary sums
of money, to be raised by a percentage on the revenues of
all the colonies interested.
" As it might excite jealousy if a jurisdiction of this importance
were to be incorporated in the Act of Parliament, which has unavoid-
ably become a necessary part of the measures for conferring a
Constitution on this colony, in consequence of the defective powers
given by Parliament to the Legislative Council, your Committee
confine themselves to the suggestion that the establishment of such a
body has become indispensable, and ought no longer to be delayed ;
and to the expression of a hope that the Minister for the Colonies
will at once see the expediency of introducing into Parliament, with
as little delay as possible, a Bill for this express object."

In this suggestion nothing was definite except the list of federal
subjects. There was no hint of an opinion as to the shape which the
Assembly ought to take ; and we must suppose either that the
Committee had not considered the matter, or that they were satisfied
with the scheme already proposed by the Home Government. One
thing is clear; however, that Wentworth himself did not at that time
contemplate a real national unity for Australia, or indeed anything
more than a General Assembly to secure uniform legislation on a few
matters of common interest. In the course of the debate on the
Constitution, he took occasion to ridicule the scheme propounded by
Dr. Lang of a " great federation of all the colonies of Australia, of
New South Wales, Victoria, Tasmania, and South Australia ; each
State to have a separate local government and sending members to
Congress to form a great central government." These. words, accord-
ing to the report, were greeted by the House with "shouts of
laughter" — directed in part, no doubt, at Dr. Lang's republican
ideas of " cutting the painter." An elaborate scheme of Federation
would cei-tainly have been premature; but to a prophetic eye it need
have had nothing of the ridiculous.

Victorian Constitutional Committee. — ^The Committee appointed
in Victoria in September, 1853, to draft a new Constitution for that
colony, also dealt with the question, but in an even vaguer wav. Its
report contained these passages : —

" From the great extent of Australia, and the widely differing
circumstances of its several colonies, your Committee do not think
it essential for local legislation that uniformity of institutions should

92 HISTORICAL INTRODUCTION.

prevail. They have followed, as far as principle permitted, the Bills
proposed in New South Wales and South Australia. . . .

" But they do feel most strongly that there are questions of such
vital intercolonial interest that provision should be made for occasion-
ally convoking a General Assembly for legislating on such questions
as may be submitted to it by the Act of any Legislature of one of the
Australian colonies."

This report was dated 9th December, 1853, when the report of
Wentworth's Committee had been available for some five months;
but in place of Wentworth's list of eight subjects, it only proposed to
give the General Assembly power to legislate on questions " submitted
to it " by the legislatures.

Lord John Russell's Reply. — The Home Government, however,
in enacting the Constitutions, did not think proper to make any pro-
vision for a General Assembly. The Constitution Acts (18 and 19
Vic. c. 54 and c. 55) were passed in 1855, and in the despatch accom-
panying them to Australia Lord John Russell, then Secretary of State
for the Colonies in Lord Palmerston's Ministry, wrote : — " I need
scarcely say that the question of introducing into the measures lately
laid before Parliament clauses to establish a federal union of the
Australian colonies for purposes of common interest has been very
seriously weighed by Her Majesty's Government; but they have been
led to the conclusion that the present is not a proper opportunity for
such enactment, although they will give the fullest consideration to
any propositions on the subject which may emanate in concurrence
from the respective legislatures."

There is no reason to suppose that Lord John Russell had changed
his opinion as to the desirableness of a federal union; but Earl Grey's
adventures had taught him that devising colonial constitutions, even
with the best intentions in the world, was thankless work for an
English statesman. Two of the Australian colonies had expressed
opinions in favour of a General Assembly, but there had been no con-
currence— and indeed no conference — on the subject between the
colonies, and no definite scheme was before him. The colonies had,
by dint of much remonstrance, obtained recognition of the right to
frame their own constitutions; and the Home Government naturally
preferred to await more definite propositions.

(4) AUSTRALIAN EFFORTS, 1854-1863.

In its next stage the movement began to take a more definite
shape. Already in 1852 Dr. Lang had propounded an elaborate
scheme of federation on the American plan ("Freedom and Indepen-
dence for the Golden Land.s of Australia ") ; but his bellicose tone and
his clamour for separation from the mother-country robbed him of
influence. In 1854 a series of thoughtful letters in the Sydney Morn-
ing Herald, over the signature of " John Adams," dealt convincingly
with the need of union, and discussed many of the details. The
writer of these letters was the Rev. John West, then residing in Tas-

THE FEDERAL MOVEMENT IN AUSTRALIA. 93

mania, but afterwards editor of tlie Sydney Morning Herald. Two
years later the Herald returned to the theme, discussed the difficulties
and the advantages, and recommended that the Home Government
should take action by passing a law enabling the colonies to establish
a federation. (Leading article, 23rd October, 1856. In Wentworth's
Memorial the article is wrongly attributed to the Melbourne Argxis.)
And in the following week, on 29th October, 1856, Deas-Thomson,
who had for many years been Colonial Secretary under the old official
system, and who then represented the Parker Government in the
Upper House, spoke hopefully in the House of the near probability
of some federal arrangement. There were seven great questions, he
said, which ought to be submitted to a representative Federal
Assembly ; namely, a uniform tariff, the land system, the management
of the goldfields, postal communication, intercolonial railways, inter-
colonial telegraphs, and coast lighthouses.

Wextworth's Memorial. — These hints were not lost upon Went-
worth, who was then living in England, and whose farewell words
when leaving Australia in 1854 had been; — " Whatever may be my
destiny, believe me that my latest prayer shall be for the happiness
and prosperity of the people of Australia, and for its rapid expansion
into a nation, which shall rule supreme in the southern world."
{Sydney Morning Herald, 21st Mai'ch, 1854.) He lost no time in
showing not only that these words were sincere, but that his convic-
tions of the importance of Australian union were deepening. He pre-
pared a Memorial to Mr. Henr)-^ Labouchere, Secretary of State for
the Colonies, and also the draft of a short Enabling Bill; and at a
meeting of the " General Association for the Australian Colonies," held
in London on 31st March, 1857, with Went worth himself in the chair,
the Memorial and the Draft Bill were adopted. For the Memorial
and correspondence see Votes and Proc, Leg. Ass. of X.S.W., 1857,
i. 383.

The Memorial emphasized the need of a Federal Assembly, and
the inconvenience resulting from the want of it, and illustrated the
" clumsy contrivances " that had to be resorted to where intercolonial
action was necessary. It was " not to be wondered at that a strong
feeling of discontent should be growing up among the inhabitants of
these colonies ; from their being compelled to resort to such indirect,
tedious, and illegal expedients in substitution of that federal authority
without which their several Constitutions must continue incomplete
as regards all measures and undertakings which require the joint
action and co-operation of any two or more of them." It referred to
Earl Grey's scheme, to the report of the Constitutional Committee, to
Deas-Tliomson's recent speech, and to other indications of opinion,
and besought the Government to anticipate graver inconveniences by
taking action at one. A Federal Assembly could only originate in an
Imperial Act of Parliament, which might either constitute such a
body directly, or give to the Legislatures of any two or more colonies
a permissive power to form a federation themselves. The latter
course — the passing of a permissive Act — was what the Memorialists
thought " the most desirable, if not the only course which can now be
adopted." They expressed the opinion that " a complete equality of

94 HISTORICAL INTRODUCTION.

representation, as between all the Australian colonies, should be
insisted upon, without reference to the extent of their population."
They also suggested that to prevent jealousy the Federal Assembly
might, in the first instance, be " perambulatory."

The Bill which was subjoined, and which contained only five
short clauses, was merely an " Enabling Bill," with a few constitutional
outlines thrown in. It empowered any two or more of the Legislatures
of JSTew South Wales, Victoria, South Australia, and Tasmania, to
send four persons to form a Convention " for the purpose of creating
a Federal Assembly." The only rules laid down by the Act for the
constitution of the Assembly were — (1) that when created it should
have power to amend its OAvn constitution ; (2) the extent of its legis-
lative powers was defined, practically on the basis of Deas-Thomson^s
speech; (3) the Federal Assembly should be summoned by the
Governor-Greneral (or Senior Governor), audits Acts were to be subject
to the Royal assent ; (4) the Federal Assembly was to appoint its own
president, and fix its own expenses and the salaries of its officers;
(5) the necessary expenses, were to be apportioned by the Federal
Assembly among the several colonies, and were to be provided for by
the several Legislatures; (6) any colony which did not join at the
outset might afterwards join the Federation, and have the right of
sending the same number of representatives as should be fixed for all
the other colonies.

It is to be noticed that this Bill, whilst it provided for equal
representation in the preliminary Convention, did not expressly bind
the Convention to establish equal representation in the Federal
Assembly ; though the provision as to the representation of colonies
which might afterAvards join seemed to contemplate equal representa-
tion. It is also to be noticed that the Convention was empowered
actually to establish a Federal Assembly, without further reference
to the Imperial Parliament ; and in the constitution of that Assembly
it was to have a free hand, subject only to the conditions already
mentioned. The use of the term " Federal Assembly " in place of
" General Assembly " marks a distinct stage in advance, as showing
that the national aspect was becoming more prominent. The scope
of the legislative power of the Assembly was also enlarged, being
defined to extend to tariffs, lighthouses, gauges of connecting rail-
ways, navigation of connecting rivers, intercolonial telegraphs and
postage, the upset or minimum price of land, management of the gold-
fields, coinage, weights and measures, defence, a court of appeal,
penal settlements, and any other matter which might be submitted to
it. On the other hand it was not to have any power of raising
revenue for itself, but was to rely on contributions levied from the
Legislatures of the colonies.

This notable scheme met with a discouraging reception from
Labouchere, who, in acknowledging the Memorial, admitted the
inconvenience arising from the want of means of joint action, but said
that after weighing the reasons for and against the scheme, he had
"arrived at the decided opinion that Her Majesty's Government
would not in reality promote the object of the Memorialists by intro-
ducing such a measure as that of which the outlines are given in the

THE FEDERAL MOVEMENT IN AUSTRALIA. 95

Memorial, notwitLstandiug its purely permissive character."' He
thought that the colonies would uot consent to entrust such large
powers to an Assembly thus constituted, or to be bound by federal
laws imposing taxation or involving appropriation ; and even if they
did consent to establish such a system, the result would probably be
dissension and discontent. He would not think himself warranted in
making such a proposal — merely permissive though it was — unless he
were himself satisfied that it was founded on just and constitutional
principles, and also that it was likely to be acceptable to the colonies
concerned. He promised, however, to send copies of the correspon-
dence to the several Governors, and to give his best attention to any
suggestion which he might receive from the colonies in reply ; and
meantime he hoped that even if a federal scheme should prove
impracticable and premature, much might be done by negotiation and
concerted legislation.

Under the circumstances, Wentworth could do nothing but express
his regret at the delay which the reference to the Governors would
cause, and his hope that the reference would be made as soon as
possible, that the opinions of the several Legislatures might be
obtained.

Disappointing as Labouchere's decision may have seemed, the
justness of his criticisms can to-day hardly be disputed. There were
very slight indications that the colonies asked for a General Assembly
at all — merely the reports of a couple of committees, the opinions of
one or two statesmen, and some newspaper extracts. And there were
no indications at all that the basis outlined in the Bill had any
sanction from Australia. Nor is it certain that the colonies would
have taken advantage of the Act if passed. In view of the extent to
which colonial rights of self-government had already been conceded,
postponement for further consideration by the colonies was no more
than prudent.

ViCTORiAX Select Committee. — Meanwhile the question of union
was already being considered in Australia. In Jaiiuary, 1857, Mr.
(afterwards Sir) Charles Gavan Duffy, who had recently arrived in
Victoria, obtained the appointment of a Select Committee of the Legis-
lative Assembly of that colony "to enquire into and report npon the
necessity of a federal union of the Australasian colonies for legislative
purposes, and the best means of accomplishing such an union if
necessary." The Committee held five sittings, at only two of which
a quorum was obtained — either from a want of interest in the ques-
tion, or perhaps, as Mr. Rusden suggests in his History of Australia,
from a suspicion that Mr. Duffy, like Dr. Lang, was aiming at a
separation from the mother-country. Its report, which is a most
interesting one, was not brought up till September. The Committee
were unanimous as to the ultimate necessity of a federal union. As
to the time of accomplishing it they differed; but they were aU
agreed that it was "not too soon to invite a mutual understanding on
the subject," and they added that " most of us conceive that the time
for union is come."

On the best means of originating the union they were also
unanimous. No single colony ought to dictate the programme of

96 H[STORTCAL INTRODUCTION.

union ; the delicate and important questions involved could be solved
only by a conference of delegates from all the colonies. The course
they recommended, therefore, was " that such a Conference be imme-
diately invited." As to the form which the union should take, they
expressed no opinion at all ; but they went on to state, in the form of
queries, some of the questions which the Conference would have to
face : whether there should be " merely a Consultative Council
authorized to frame propositions for the sanction of the State Legis-
latures, or a Federal Executive and Assembly with supreme power on
national and intercolonial questions, or some compromise between
these extremes;" whether the Federal Legislature should consist of
one or two branches ; whether it was to have the power of taxation,
or only of assessment on the several states ; where the federal body
should sit, or whether it should be rotatory, and so forth.

With regard to the Conference, they recommended specifically
that each Legislature should send three delegates, two of whom might
be members of Assembly and one member of Council ; and that the
Conference be empowered to frame a plan of federation to be after-
wards submitted for approval, either to the Legislatures or directly
to the people, or to both, and to receive final legislative sanction.
The report concluded with the remark — apparently aimed at Went-
worth^s Memorial — that "your Committee are fully convinced that a
negotiation demanding so much caution and forbearance, so much
foresight and experience, must originate in the mutual action of the
colonies, and cannot safely be relegated even to the Imperial
Legislature."

The recommendations of the Committee were shortly afterwards
adopted by both Houses of the Victorian Parliament, and were trans-
mitted to the other colonies.

New South Wales Select Committee. — In August of the same
year (1857) Deas-Thomson had obtained a Select Committee of the
Legislative Council of New South Wales, " to consider and report on
the expediency of establishing a Federal Legislature invested with
the necessary power to discuss and determine all questions of an
intercolonial character arising in the Australian colonies generally,
and to suggest the manner in which the object can be best obtained."
This Committee began their proceedings by agreeing that it was
expedient to establisla a Federal Assembly, and then went on to sketch
out a scheme. They had before them Wentworth^s Memorial, and
followed in the main his suggestions. The initiative was taken by Sir
W. W. Burton, an ex- judge of the Supreme Court, on whose motion
it was resolved that the Federal Assembly should consist of delegates
chosen by the several Legislatures ; that each colony should be repre-
sented by an equal number of delegates, namely, four; and that the
Assembly should have power to legislate on all intercolonial subjects
which might be submitted to it hy the Legislatures of two or more
colonies interested, ''and on no other subject.^' This last was the
only substantial point on which the Committee's scheme differed from
Wentworth's. Deas-Thomson then brought up a series of resolutions
taken almost bodily from Wentworth's Bill — to which the Committee
acknowledged their obligations — and these were carried. The Cora-

THE FEDERAL MOVEMENT IN AUSTRALIA. 97

mittee had evidently intended to embody this scheme in their report ;
but at this stage they received the report of the Victorian Select Com-
mittee, and determined to fall into line with it.

Their report, which was brought up in October, stated that the
Committee had become forcibly impressed with the expediency of
adopting some comprehensive measure for a Federal Assembly at as
early a date as possible. They recognized the difficulties of suggesting
a measure acceptable to all the colonies, but conceiyed that these
difficulties would rather increase than diminish with delay. They
were confident that when the advantages were considered, there would
be such a concurrence of opinion as would lead to the adoption of
some safe and practicable measure. They had no hesitation in
recommending immediate action, in the firm belief that the Federal
Union of the Australian colonies would contribute more effectually to
their general prosperity and advancement than any other measure
that could be devised.

They pointed out that the matter could not be definitely settled
without Imperial legislation, " to which there would, of course, be no
objection if the general principles of the measure were previously
agreed upon" — a phrase which indicates their acquiescence in Labou-
chere's reply to Wentworth. They also referred to that reply "as
establishing the fact that no measure providing for federal union will
be adopted unless initiated and recommended by the colonies them-
selves."

They heartily endorsed the Victorian proposition of a Conference,
which they unanimously recommended to the House. They explained
that before receiving the Victorian report they had made some pro-
gress in drawing up the outlines of a scheme, and they referred to
these proceedings, not with the intention of dictating their views, but
in the hope of assisting the delegates, if appointed.

Finally, they expressed a decided opinion that the matter could
no longer be postponed without the danger of creating serious
antagonism and jealousy, which would embarrass, if not entirely
prevent, its future settlement on a satisfactory basis. Accordingly,
they urged that the concurrence of the Assembly be invited, and
further steps taken without delay.

The Committee were evidently in earnest; and had they been
well backed up, union might have been achieved. Unfortunately,
however, other influences were at work. During the deliberations of
the Committee, the Parker Government, of which Deas-Tliomson was
a member, had been replaced by the Cowper administration, with Mr.
(afterwards Sir) James Martin as Attorney-General and the dominat-
ing personality of the Cabinet. Neither Cowper nor Martin cared
anything for federal union ; and the colony, in the exercise of newly-
won responsible government, was engrossed in such questions as the
franchise, the reform of the Upper House, and the land question.
Moreover the rivalry between New South Wales and Victoria was
already leading to jealousy and bad feeling. The stream of immigra-
tion to the goldfields had suddenly given Victoria the lead in
population; and Duffy's overtures were received with suspicion, as
part of a scheme of Victorian aggrandisement. Deas-Thomson

98 HTSTORTCAL INTRODUCTIOK

succeeded in securing the adoption of his report by the Council^ which
then sent a message to the Assembly, asking its concurrence in joint
resolutions. Joint resolutions, based on the Victorian recommenda-
tions, were agreed to in conference, and their consideration by the
Assembly was fixed for 18th December; but on 17th December the
Cowper Government was defeated on a Crown Lands Bill, and a
dissolution followed. On the reassembling of Parliament in March,
1858, the federal question was shelved. The Governor's speech
announced that '' the question of a Federal Legislature is still under
discussion by the Legislatures of the neighbouring colonies, but I am
of opinion that the consideration of this subject may, without incon-
venience, be deferred to future consideration." This announcement
was received without protest. In the Address-in-Reply, the Assembly
agreed that the discussion "may, under existing circumstances, be
deferred/' whilst the Council resolved more emphatically that it
^'must, under existing circumstances, be deferred.^' No hint was
given of what the "circumstances" were; but they doubtless com-
prised suspicion of Victoria, and an engrossing interest in domestic
legislation. Deas-Thomson seems to have resigned himself to the
inevitable.

South Australian Select Committees. — In South Australia, Select
Committees of each House were appointed in 1857 to consider the
question of federal union, and in November they brought up reports
couched in identical terms. They were of opinion that under existing
circumstances the formation of a Federal Legislature would be pre-
mature, but that nevertheless there were so many topics in which the
colonies had a common interest, and in which uniform legislation
would be desirable, that it was expedient to adopt some measures to
secure these objects. They mentioned, as subjects which might be
added to Wentworth's list, the following : — Patents and copyrights,
law of insolvency, professional qualifications, uniform time of meeting
of Parliaments. With a view to the discussion of the question, they
adopted the Victorian suggestion that a Conference should be held;
but they recommended that it should not be authorized to bind the
Legislature, but only to discuss and report. These recommendations
were adopted by both houses, and delegates were appointed to repre-
sent South Australia at any Conference which might be held.

Other Proceedings. — Notwithstanding the backwardness of New
South Wales, Mr. Duffy kept up his exertions, and in December, 1857,
obtained a second Select Committee of the Victorian Assembly, which
in the following February brought up a progress report, urging
that delegates should be appointed to meet the delegates from other
colonies. This report was adopted by both Houses. Shortly after-
wards the Tasmanian Parliament took the question up. The House
of Assembly resolved " That in the event of the Conference of dele-
gates from the Australian colonies assembling previously to the next
meeting of Parliament, it will be expedient that this colony should be
represented at such Conference." The Council concurred, and dele-
gates were appointed, to act in such capacity only until the next
session.

In January, 1860, Mr. Duffy obtained a third Select Committee,

THE FEDERAL MOVEMENT IN AUSTRALIA. 99

which in February brought up a progress report recommending a
renewal of negotiations with New South Wales, South Australia, and
Tasmania, for a Conference on the subject of Federal Union. It was
pointed out that the two latter colonies, when a Conference was first
proposed, had promptly acceded; and " though an objection originated
with Xew South Wales Avhich retarded any joint action," there was
reason to believe that it was of a temporary nature, and had dis-
appeared before the urgency with which the question was invested by
the necessity of a united defence of Australia in case of war. The
disappearance of the " temporary objection " in New South Wales is
presumably an allusion to the downfall of the Cowper Ministry ; and
Mr. Duffy's renewed invitation seems to have been inspired by the
hope that Mr. William Forster, the new Premier of Xew South Wales,
would be more favourable. But he was once more disappointed. The
resolutions were forwarded to the other colonies, and the Governments
of South Australia and Tasmania promised to give the matter atten-
tion. But Xew South Wales took no steps whatever. Dr. Lang,
indeed, in the Legislative Assembly, obtained Select Committees in
two consecutive sessions to consider the question ; but though the
Committees met and deliberated, no report was brought up.

Ql'eexslaxd. — In 1859 the Moreton Bay district was severed from
New South Wales and became the new colony of Queensland. The
Victorian Government accordingh^ included Queensland in their last
invitation. The Colonial Secretary of that colony, Mr. (afterwards
Sir) R. G. W. Herbert, in reply, stated that his Executive Council
approved of the Conference, as a means of ascertaining the views of
the colonies, and determining how far a federal union would be either
practicable or expedient. On both these points the Council, with the
information before them, entertained serious doubts. Without wishing
to prejudge the question, they saw grave obstacles to the creation of
a central authority which might " tend to limit the complete indepen-
dence of the scattered communities peopling this continent," or inter-
fere with their direct relations with the mother-country. At the same
time, they were alive to the importance of uniform legislation on
certain subjects, and were willing to discuss the matter in Conference.
Queensland, in short, was not enamoured of the federal idea.
She was enjoying her new isolation, and looked on federation as a
kind of re-annexation. " Complete independence " was her ideal for
the moment.

Failuke of Federal Proposals. — For the time, therefore, the
project of a federal union failed. That there was no Conference on the
subject was due to the backwardness of Xew South Wales ; but even
had a Conference been held, it is more than doubtful whether there
would have been any practical result. In no colony was there any
general enthusiasm, or even interest, in the subject; though in all
there were a few far-siofhted statesmen who recosrnized the essential
unity of Australia. Even in Victoria, whose statesmen showed the
most eagerness for union, there was nothing approaching a real
federal movement. Local politics, and the development of local
institutions, engrossed the attention of the people; and probably no
colony would have been prepared to accept the compromises and the

100 HISTORICAL INTRODUCTION.

partial sacrifice of local independence which a federal union would
have involved. The best justification of the inaction of the Imperial
Grovernment is the want of interest shown by the colonies themselves.

(5) THE TARIFF QUESTION, 1855-1880.

Though Federation proved unattainable for the time, continued
efforts were made to mitigate the evils arising from conflicting tariffs
and intercolonial duties. These constituted the chief practical incon-
venience of disunion; and there were many attempts to establish
border treaties, commercial reciprocity, intercolonial freetrade, or
customs unions. To take up the story of these it is necessary to go
back a few years.

Tariff Differences. — We have seen (p. 79, supra) how the
tariffs of the colonies drifted apart from the first. In August, 1852,
shortly after the separation of Victoria, Deas-Thomson succeeded in
greatly simplifying the tariff of New South Wales by restricting it to
a very few articles — chiefly stimulants, narcotics, tea, coffee, and
sugar. In the same month an almost identical tariff was established
in Victoria. South Australia and Tasmania, however, retained longer
lists of dutiable articles; and so early as 1854 Victoria began to
increase her duties. Deas-Thomson, however, still hoped to see
uniformity established ; and in September, 1855 — on the eve of the
establishment of Responsible Government — the Governor-General, Sir
W. Denison (presumably at Deas-Thomson's suggestion), sent a
message to the Legislative Council recommending the assimilation of
the New South Wales tariff to that of Victoria. (Notes and Proc,
Leg. Ass. of N.S.W., 1855, i. 233.) He pointed out the objections
which existed to the maintenance of custom-houses on the Murray
border, and to differences between the tariffs of the two colonies. At
the time of separation an attempt had been made to provide against
these difficulties by creating a General Assembly; but this attempt
had failed. The result had been the adoption of different tariffs in the
two colonies, and as a corollary the establishment of custom-houses on
the common border. That system, if continued, would lead to great
annoyance; and he had suggested to Sir Charles Hotham, the
Governor of Victoria, that it would be desirable for the Governments
of the two colonies to agree not to levy any duties on goods passing
by land from one colony to the other. The difference between the
tariffs of the two colonies would, however, throw difficulties in the
way of such an agreement; and seeing that the state of the revenue
in New South Wales required a revision of the tariff, he suggested
that it was a favourable opportunity to bring the two tariffs into
harmony by adopting the Victorian tariff. In his letter to Sir Charles
Hotham, Sir William Denison expressed his expectation that, when
uniformity was once secured, future modifications of the respective
tariffs would be discussed between the two Governments.

The Council, however, did not altogether accept this advice, and
modified the Governor-General's tariff; but the tariff as finally
adopted was still a rough approximation to that of Victoria.

THE FEDERAL MOVEMENT IN AUSTRALIA. 101

Murray Ccstoms Treaties. — Two kinds of traffic had to be dealt
with in connection with the collection of customs on the Murray.
First, there was the traffic across the river between the colonies of
New South Wales and Victoria. Then there was the traffic up and
down the river, which, when the navigability of the Murray had once
been established, soon became considerable, and which involved the
three colonies of New South Wales, Victoria, and South Australia.
Immediately after the adoption of the Xew South Wales tariff of 1855,
an asrreement was made between the Governments of Xew South
Wales, Victoria, and South Australia, that no duties should be collected
on goods crossing the Murray, and that duties on goods carried up the
Murray from South Australia, for consumption in New South Wales
or Victoria, should be collected by the South Australian Government
according to the South Australian tariff, the proceeds being divided
equally between New South Wales and Victoria. These arrangements
were validated by statute in each colony. (In Victoria, by the
Customs Regulation Act, 1854, 17 Vic. No. 17 ; in New South Wales
by the Murray Customs Duties Act, 1855, 19 Vic. No. 21; in South
Australia by the Murray Customs Act, 1856, No. 6.) Accordingly, on
1st November, 1855, trade between New South Wales and Victoria,
across the river Murray, became fi*ee. At that time the balance of
trade was with New South Wales, and the freedom of the Murray was
conceded by Victoria at the request of New South Wales. Dissatis-
faction, however, soon arose. New South Wales complained that by
the adoption of the South Australian tariff on Murray-borne goods
she was losing revenue — especially on tobacco. Victoria complained
that equal distribution of the duties collected by South Australia was
not fair, seeing that most of the Murray-borne goods were for con-
sumption in Victoria. In 1857, after much correspondence (Votes
and Proc, LA. of N.S.W., 1862, ii. 647), during which an assimilation
of tariffs was unsuccessfully mooted, a new arrangement was made, by
which the New South Wales tariff was adopted as that which the
Government of South Australia should levy on Murray-borne goods.
This arrangement was sanctioned in New South Wales by the Eiver
Murray Customs Act, 1857, and in South Australia by the Murray
Customs Act, 1857, No. 2, and remained in force until 1864.

Uniform Tariff Proposals. — In March, 1862, the Colonial Secre-
tary of South Australia opened a correspondence with the other
colonies on the subject of the desirability of a uniform tariff in all the
colonies. (Votes and Proc, Leg. Ass. of N.S.W., 1862, ii. 647.) He
expressed the opinion that, until the means of communication im-
proved, complete Federation would be impossible. Meanwhile, as one
step towards union, his Government intended to seek legislative
authority for admitting free of duty the produce of any colony which
made a reciprocal concession ; and he suggested an intercolonial Con-
ference at Melbourne to consider the question of a uniform tariff. The
proposal was favourably received. Mr. Duffy, still intent on a Federal
Union, promptly obtained a fourth Select Committee, which brought
up a report urging that the Conference on a uniform tariff would
afford a favourable opportunity to consider the larger question of
Australian Federation. This report was adopted by both Houses of

102 HISTORICAL INTRODUCTION.

the Victorian Parliament, but met with no response from the other
colonies. The Conference, after some delay, met at Melbourne in
March, 1863, being attended by three delegates from each of the
colonies of New South Wales, Victoria, South Australia, and Tasmania.
The subject of Federation was not considered at all ; the Conference
reporting that " although the question has, during some years,
occupied the attention of several of the Legislatures, the delegates
had no instructions in the matter, and it did not seem probable that
its discussion at present would be attended with any benefit." Several
subjects of intercolonial administration and legislation were dealt
with ; but the most important part of the business was the discussion
of the question of a uniform tariff, intercolonial freetrade, and the fair
distribution of the customs duties.

The Conference resolved that it was " desirable to settle the basis
of a uniform tariff for the Australian colonies, and also for Tasmania."
They agreed that the ad valorem mode of levying duties was open to
so many objections that it ought not to be resorted to ; and they
framed a tariff, the adoption of which they undertook to urge upon
their respective Parliaments. They also gave it as their opinion that
the tariff which had been agreed upon, after the fullest deliberation,
ought not to be altered by any one colony, nor without consideration
at a future Conference.

Then came the question of intercolonial duties and their distribu-
tion. On this point the Conference resolved that " customs duties
ought to be paid to the revenues of those colonies by whose population
the dutiable articles were consumed." The strict fulfilment of this
would have involved the maintenance of the objectionable border
custom-houses; so they added a resolution to the effect that the
colonies of New South Wales, Victoria, and South Australia ought to
co-operate to secure to each the revenue to which it was legally
entitled, either by distribution of the revenue in proportion to popula-
tion, or by some other mode which might be considered equitable and
practicable.

New South Wales and Victoria, however, failed to agree on any
^'equitable mode" of distributing the revenue. Cowper, for New South
Wales, offered to accept any one of three methods: either (1) divi-
sion according to population; or (2) keeping entries of border imports
and making periodical settlements between the Governments; or (3)
payment of a fixed annual sum to New South Wales, estimated on the
excess of revenue lost by New South Wales, as compared with Vic-
toria, by the freedom of the border. None of these propositions,
however, satisfied the Victorian Premier, Mr. (afterwards Sir) James
McCulloch, who " failed to discover any equitable grounds for disturb-
ing the existing arrangement entered into at the instance of the
Government of New South Wales." The "existing arrangement"
was the freedom of the border without any adjustment of accounts.
This did not suit New South Wales. The claim of that colony to
receive the revenue on imports consumed in the colony arose from the
fact that the balance of intercolonial trade was at that time with
Victoria. As Victoria definitely rejected all the' terms proposed, the
New South Wales Government put an end to the " existing arrange-

THE FEDERAL MOVEMENT IN AUSTRALIA. 103

ment/' and on 19th September, 1864, began to collect duties on the
Murray, having previously passed an Act (7 Tic. No. 24) to remove
doubts as to the legality of this course.

In April, 1865, at the instance of Xew South Wales, a Conference
was held at Sydney between representatives of the two colonies to
reconsider the matter. (Votes and Proc, L.A. of N.S.W., 1865, i. 675).
As a result a new agreement was entered into, by which on 1st Sep-
tember, 1865, the Murray border again became free, subject to a
yearly payment of a fixed sum by Victoria to Xew South Wales. The
duties on Murray-borne goods from South Australia were to be col-
lected by Victoria, according to the Victorian tariff. This agreement
was revised in 1867, and expired on 1st Februarv, 1872. (Votes and
Proc, L.A. of X.S.W., 1867-8, ii. 305; N.S.W.'Act, 31 Vic. No. 1.)
At the Conference of 1873 a new agreement was entered into ; but
Victoria retired from it on 31st January, 1873, owing to the abolition,
under the Parkes Administration, of the Xew South Wales ad
valorem duties which had been imposed by the Cowper Administration
seven years previously. Since that date all attempts at agreement
have failed, owing to the great difference between the tariffs of the
two colonies, and duties have been collected on the border. For
attempts at a similar agreement with Queensland, see X.S.AV. Act, 25
Vic. Xo. 20; Votes and Proc, L.A. of X.S.W., 1871-2, i. 873. In
1876 an Act was passed in Xew South Wales (Border Duties Conven-
tion Act) to authorize Conventions with any of the adjoining colonies,
but without any definite result.

IxTERCOLONiAL CoNFEREXCEs, 1863-1880. — During the whole of this
period Intercolonial Conferences were resorted to, with varying
success, as the only available method of securing uniform legislation
and concerted administration on subjects of common concern. A
certain amount of joint action was thus secured with respect to such
matters as lighthouses, ocean postal services, telegraphic communication
with Europe, alien immigration, defence, and so forth. Most of these
Conferences had no direct bearing on the question of Federation,
except to show the utter inadequacy of this method of dealing ^Wth
intercolonial questions. (See G. B. Barton, Historical Sketch of Aus-
tralian Federation, pp. 12-14.)

One of these Conferences, which was held at Melbourne in March,
1867, is of special interest, as it brings Mr. (afterwards Sir) Henry
Parkes — then Colonial Secretary of Xew South Wales in the second
Martin administration — into prominent notice as an advocate of
Federation. The Conference met to discuss the question of postal
communication with Europe, the Imperial Government having offered
to pay half the subsidy for a steam postal service between Point de
Galle (in Ceylon) and Australia. The Conference, however, had
larger ideas ; it passed resolutions in favour of establishing a fort-
nightly service by three routes — Torres Straits, Suez, and Panama —
the colonies undertaking to pay half the necessary subsidy. A
memorial to the Queen was drawn up, and it was resolved that a
Federal Council should be established to carry the resolutions into
effect. Mr. Parkes addressed to the Conference these notable words: —

'^ I think the time has arrived when these colonies should be

104 HISTORICAL INTRODUCTION.

united by some federal bond of connection. I think it must be mani-
fest, to all thoughtful men, that there are questions projecting' them-
selves upon our attention, which cannot be satisfactorily dealt with by
any one of the individual Governments. I regard this occasion, there-
fore, with great interest, because I believe it will inevitably lead to a
more permanent federal understanding. I do not mean to say that,
when you leave this room to-night, you will see a new constellation of
six stars in the heavens. I do not startle your imagination, by asking
you to look for the footprints of six young giants in the morning dew,
when the night rolls away ; but this I feel certain of, that the mother-
country will regard this congress of the colonies just in the same light
as a father and mother may view the conduct of their children when
they first observe those children beginning to look out for homes and
connections for themselves. I am quite sure that the report of this
meeting in your city of Melbourne, little as it may be thought of here,
will make a profound impression upon the minds of thoughtful states-
men in England. They will see that, for the first time, these offshoots
of Empire in the Southern Hemisphere can unite, and that, in their
union, they are backed by nearly 2,000,000 souls."-^-Melbourne Argus,
18th March, 1867.

A Bill to establish the proposed Federal Council was shortly
afterwards introduced by Mr. Parkes in the Legislative Assembly of
New South Wales. This Bill, to which the resolutions of the Confer-
ence were annexed in the schedule, was carried through both Houses,
and reserved for the Royal assent. It was, however, shelved by tha
Home Government. The Duke of Buckingham, then Secretary for
State, informed the Governor of New South Wales, in a despatch
dated 5th January, 1868, that if the resolutions in the schedule had
received Imperial assent, or had continued to command the assent of
the colonies, or if the Act had created a Federal Council to deal
generally with postal communication or any other subject of inter-
colonial interest, he would have recommended that it be assented to ;
but as the powers of the Council wei-e confined to a definite scheme,
to the details of which Her Majesty^s Government could not agree, he
was unable to submit it to the Queen. — Votes and Proc, Leg. Ass. of
N.S.W., 1868-9, i. 535.

Commercial Fedbkation. — Besides the border treaties, continued
efforts were made to secure some more comprehensive scheme of
customs union or commercial reciprocity. The Constitutions of all
the Australasian colonies, except New Zealand, contained a prohibition
— originating in the Australian Colonies Government Act of 1850 (13
and 14 Vic. c. 59, sec. 31) — against any duties upon imports from
" any particular country or place " which were not equally imposed
on imports from " all other countries and places whatsoever." These
prohibitions stood in the way of colonial legislation for reciprocity ;
and in 1866 the P]xecutive Council of New South Wales adopted a
minute asking for their repeal so far as to allow free importation from
any one colony. (See despatch from Sir John Young to the Secretary
for State, 21st December, 1866; Votes and Proc, L.A. of N.S.W.,
1868-9, ii. 109.) Lord Buckingham, the Secretary of State for the
Colonies, replied in a despatch of 7th January, 1868, that the Home

THE FEDERAL MOVEMENT IN AUSTRALIA. 105

Government would gladly aid the establishment of a Customs Union
embracing all the adjacent colonies, aud providing for a uniform
tariff, intercolonial freetrade, and an equal division of the customs
duties ; they might even consider any partial relaxation of the existing
rule ; but they could not propose the repeal of the clause which pre-
vented differential duties. That would enable the colonies to
discriminate against foreign nations, and even against the mother-
country, and might seriously embarrass treaty relations. Thereupon
the Government of New Zealand proposed an intercolonial Conference
to consider the question of a Customs Union. In 1870 Tasmania
renewed the proposal; and a Conference was accordingly held at
Melbourne, in June and July, 1870, between delegates from New
South Wales, Victoria, South Australia, and Tasmania, at which the
most important question considered was the establishment of a
Customs Union, with a uniform tariff and intercolonial freetrade.
(Votes and Proc, L.A. of N.S.W., i. 583.)

This time the uniform tariff was the stumbling-block. All the
colonies agreed that a uniform tariff was desirable ; but when they
proceeded to frame such a tariff, the fiscal policies of New South
Wales and Victoria proved irreconcilable. The Victorian delegates
(Messrs. J. G. Francis and James McCulloch) absolutely declined to
surrender the principle, recognized by the Victorian tariff, of dis-
criminating between raw materials and manufactured goods. The
New South Whales delegates (Messrs. Charles Cowper and Saul
Samuel) declined to consider any proposition to amend their tariff
in the direction of such a principle. On articles subject to a '•' fixed "
duty — such as spirits, wines, beer, tobacco, tea, &c. — an agreement
could probably have been arrived at ; but the determination of each
colony to adhere to its fiscal principles made a Customs Union between
them impossible.

An effort was then made to patch up an agreement between
Victoria, South Australia, and Tasmania; but here again insuperable
difficulties disclosed themselves. With a Customs Union of all the
colonies, Victoria had been willing to agree to intercolonial freetrade
and the distribution of revenue on a population basis. But with
New South Wales standing out, Victoria considered that " the pros-
pective advantages were diminished," and offered very different terms
— namely, that distribution should be governed by contribution, that
the Victorian tariff should be accepted as the common basis, and that
the Victorian Parliament should retain the power to alter the tariff.
The other colonies promptly rejected this proposal, and all hope of a
Customs Union fell through.

The Conference reported, however, that though they had not
arrived at a definite conclusion, they had a deep conviction of the
importance of the question; and they prepared a memorial to the
Home Government praying for the removal of the existing restrictions
on intercolonial commercial treaties.

On 31st July, 1871, Lord Kimberley, the Secretary of State for
the Colonies, sent a circular despatch to the several Governors on the
subject of colonial tariffs. (Votes and Proc, L.A. of N.S.W., 1871-2,
i. 845.) He had received despatches from several of the Governors,

106 HISTORICAL INTRODUCTION.

intimating a desire for reciprocal agreements, and had received
reserved Bills from New Zealand and Tasmariia dealing with the
subject. Like the Duke of Buckingham, he objected to conceding a
general power to make reciprocal arrangements, but was favourable
to a Customs Union with a uniform tariff. He cited the British treaty
with the German Zollverein, to show that differential duties in the
colonies would infringe the treaty obligations of the Empire.

Thereupon a further Conference was held at Melbourne in Sep-
tember, 1871, at which New South Wales, Victoria, South Australia,
Queensland, and Tasmania were represented. Lord Kimberley's
despatch was discussed, and some very plainly -worded resolutions
were passed, claiming that the colonies had a right to enter into
arrangements for reciprocity, that no Imperial treaty should limit
this right, and that Imperial interference with colonial fiscal policies
should absolutely cease. Lord Kimberley replied in a lengthy des-
patch of 19th April, 1872, in which he invited a ^'friendly discussion"
of the whole question. He argued that compliance with the request
would involve not only the repeal of the prohibition in the various
Constitutions, but also the exclusion of the colonies from future
commercial treaties containing stipulations against differential duties.
(Votes and Proc, L.A. of N.S.W., 1872, i. 1015.)

Finally, a Conference, convened by Sir Henry Parkes, was held
at Sydney in January and February, 1873, at which all the seven
colonies were represented. With regard to intercolonial reciprocity,
it was resolved to urge on Lord Kimberley the claims of the colonies,
and to adopt a memorial to the Home Grovernment for the removal of
the restrictions which prevented the colonies agreeing to admit the
products of any colony into any other colony free of duty. As to a
Customs Union, it was resolved by a majority of one that such a
union would be desirable, on the understanding that customs duties
ought only to be levied for purposes of revenue, and not for
purposes of protection. (Votes and Proc, L.A. of N.S.W., 1872-3,
i. 1161.)

Lord Kimberley, though he maintained his own opinion, yielded
to these repeated demands of the colonies, and introduced the Austra-
lian Colonies Duties Bill of 1873, which was passed, though Earl Grey
and others opposed it as a step to commercial disunion. It merely
provides that the legislature of any of the Australian colonies shall,
for the pui'pose of carrying into effect any agreement with any other
of such colonies, have full power to make laws for the remission or
imposition of import duties on articles imported from such other
colonies.

The colonies thus obtained full statutory powers to enter into
arrangements for reciprocity, but the power was never used. The
constitutional obstacle was removed, but the practical difficulties in
the way of any customs union, short of the establishment of a Federal
Parliament, remained.

Victorian Royal Commission, 1870. — After the failure of Deas-
Thomson's and Duffy's Select Committees, very little was heard of any
real proposal for Federation until 1870, when Mr. Duffy made a final
effort. He secured the appointment, on 31st August, of a Royal

THE FEDERAL MOVEMENT IN AUSTRALIA 107

Commission " to consider and report upon the necessity of a Federal
Union of the Australian colonies for legislative purposes, and the best
means of accomplishing such a union." On 3rd October the Commission
brought up a " first report." As usual, there was unanimity as to the
advantages of a Federal Union. As to the means of effecting a union,
it was recognized that the form of union must be left to be decided
by an accredited intercolonial Conference, and by the several legisla-
tures. Opinion in the colonies seemed to be divided between a
Constitution like that of the recently created Canadian Dominion on
the one hand, or a mere Federal Council on the other. But they
thought that a preliminary step, as to which there would probably be
little difference of opinion, would be a permissive Imperial Act,
authorizing the Queen to establish a Federal Union of any colonies
which should agree upon terms. They thought that the best means
of accomplishing a union was to remove, by such an Act, all legal
impediments to it, and leave the colonies to determine, by negotiation
among themselves, how and when they would avail themselves of the
opportunity. They proposed to frame, and print with their second
report, a Bill of this kind for transmission to the Imperial Parliament.
Then followed some rather startling suggestions as to granting the
colonies " sovereign rights " of making treaties, and remaining neutral
in time of war — suggestions to which some of the delegates declined
to subscribe. Neither the promised "second report" nor the proposed
Bill were ever issued; and though the above report was circulated,
no further steps were taken.

Conference of 1880-1. — A distinct stage in the Federal move-
ment is marked by a Conference which met at Melbourne in November
and December, 1880, and afterwards at Sydnev in the following
January. (Votes and Proc, L.A. of N.S.W., 1881, i. 329.) At its
first meeting only the three colonies of New South Wales, Victoria,
and South Australia were represented. Sir Henry Parkes submitted
the "basis of a possible agreement as to customs duties." Briefly, it
was to the effect that uniform duties of customs and excise should be
levied on spirits, tobacco, and beer — such duties to be fixed, for the
most part, at the highest rates then prevailing; that no customs duties
should be levied except at the seaports ; and that balances should be
adjusted between the Governments on the basis of the intercolonial
trade statistics of 1878-80. He declared that New South Wales was
prepared to sign a Convention for three or five years on such a basis.
The restriction of uniformity to the articles mentioned, of course,
shirked the burning question of freetrade and protection. Mr. (after-
wards Sir) Graham Beny, for Victoria, maintained that the only
satisfactory solution of the border question was a completely uniform
tariff — more than hinting, however, that the tariff must be mainly that
of Victoria. The matter was discussed, and postponed to the Sydney
session.

Resolutions were also passed, at the instance of Sir Henry Parkes,
affirming (1) that the time had arrived when a Federal Council should
be created to deal with intercolonial matters; (2) that such Council
might be constituted, with limited powers, by Acts of the several
Parliaments, each colony having an equal number of representatives :

108 HISTORICAL INTRODUCTION.

(3) that the control of each colony over its own revenue should be
preserved intact ; and (4) that New South Wales should be requested
to prepare the necessary Bill, to be submitted to the Conference at its
next meeting.

The Sydney session in January was joined by delegates from all
the seven colonies. The proposal of a uniform tariff ended with a
mere recommendation that a joint commission should be appointed to
frame a common tariff^ and that the number of commissioners from
each colony should be — Victoria^ three ; New South Wales, New Zea-
land, South Australia, and Queensland, two each; Tasmania and
Western Australia, one each. No such commission was ever appointed,
so that the proposal, like every other proposal for a uniform tariff,
ended in talk.

The scheme for a Federal Council got a little further. Sir Henry
Parkes brought up the promised Bill, together with the following
interesting memorandum: "In respect to the Federal Council Bill
now submitted, the following positions are assumed as hardly open to
debate : —

"1. That the time is not come for the construction of a Federal
Constitution, with an Australian Federal Parliament.

" 2. That the time is come when a number of matters of much
concern to all the colonies, might be dealt with more
effectually by some federal authority than by the colonies
separately.

" 3. That an organization which would lead men to think in the
direction of federation, and accustom the public mind to
federal ideas, would be the best preparation for the foun-
dation of Federal Government.

"The Bill has been prepared to carry out the idea of a mixed
body, partly legislative and partly administrative, as the forerunner
of a more matured system of Federal Government. Care has been
taken throughout to give effective power to the proposed Federal
Council within prescribed limits, without impairing the authority
of the colonies represented in that body.

"No attempt has been made to constitute the proposed council
on any historical model, but the object has been to meet the circum-
stances of the present Australian situation, and to pave the way to a
complete federal organization hereafter."

This memorandum, and Sir Henry Parkes' previous resolutions,
define very clearly his federal policy at that time. The main obstacle
to complete Federation was the difference in fiscal policy between
New South Wales and Victoria. Victorian statesmen would not
listen to any uniform tariff proposal except on the basis of
protection ; New South Wales statesmen were equally determined to
maintain f reetrade ; and neither were willing to entrust the question
to the free decision of a Federal Legislature. Neither a simple
customs union, nor a Federation involving a customs union, was for
the time attainable. Sir Henry Parkes behoved that a time would
come when the people of both colonies would place Federation above
the fiscal question, and would be ready to entrust the settlement of
that question to their joint representatives ; but meanwhile the only

THE FEDERAL MOVEMENT IN AUSTRALIA. 109

form of Federation possible would be one which left the fiscal question
out altogether. He believed that such a preliminary union would
prepare the way for a more complete Federation.

The correctness of Sir Henry Parkes' judgment^ that the time was
not come for a more complete Federation, was strikingly shown in the
Conference itself. An apple of discord was thrown into the discussion
by Mr. Graham Berry, who made the startling proposition that, as the
Council would need revenue of some kind, the revenues arising from
the sale and occupation of public lands should be transferred to it.
This suggestion received no support except from the Victorian
delegates. It was presumably intended to prove, by a reductio ad
absurdujn, the uselessness and impracticability of a Federation which
did not control the customs revenue.

A motion, that the Conference should agree to the Bill, and
recommend it to the legislatures, was then put, and resulted in an
equal division. New South Wales, South Australia, and Tasmania
voted for it ; Victoria, Queensland, and Xew Zealand against : whilst
the West Australian delegates did not vote at all. The proposal for
a Federal Council had, therefore, to be abandoned.

The only federal institution as to which the Conference could
agree was an Australian Court of Appeal. A Bill for this purpose
was framed and approved, and a resolution was passed recommending
the Legislatures to memorialize the Home Government with a view to
Imperial legislation on the subject. But recommendation is one thing,
and action another ; nothing further was done.

(6) THE FEDERAL COUNCIL.

EvEXTS OP 1883. — Up to the year 1883 every proposal for any
kind of Federation — complete or partial — had failed altogether.
Some small degree of uniform legislation had been attained by con-
ference ; some temporary border treaties had been entered into
between individual colonies ; but no basis had been agreed on for any
form of political union. But the events of 1883 helped to draw closer
the bonds between the colonies, and to emphasize the need of joint
action.

In June, 1883, the last section of the railway line between Sydney
and Melbourne was completed, and the long-delayed junction between
the railway systems of the two colonies was thus effected at the
Murray River. A banquet held at Albury on that occasion, and
attended by the Governors of both colonies and by many prominent
statesmen, affords an interesting historical record of the after-dinner
views of prominent men on the subject of Federation, The union of
railways irresistibly suggested the greater political union ; but most
of the speakers spoke of Federation as a " far-off divine event "
rather than as a practical policy. The Governors, of course, welcomed
the joining of hands across the Murray as a step towards Federation.
The speakers from the mother-colony did not respond very heartily.
Sir John Robertson, in a characteristic speech, alluded to a " some-

110 HISTORICAL INTRODUCTION.

thing called Federation," said that Victoria had separated of her own
free will, and invited her to return as a repentant child to her mother.
Mr. (afterwards Sir) Alexander Stuart, the JSTew South Wales Premier,
expressed his belief in slow development, and did not think that
Federation could be "precipitated in a moment." Mr. James Service,
the Victorian Premier, was the most ardent federalist of the gathering.
"We want Federation" he said, "and we want it now. I have
been now 30 years almost in public life, and I decline to subscribe to
the doctrine that I am to die before I see the grand Federation of the
colonies. There is no earthly reason for its being delayed. We
imagine there are supreme difficulties in the way, but I believe they
will crumble into dust; and I take this opportunity of telling my
friend, the Premier of New South Wales, that we intend to test the
question." Other Victorian speakers were less definite. Mr. Duncan
Gillies said that a customs union must precede any other kind of
Federation ; whilst Mr. Graham Berry, though announcing that
Victoria was " quite ready to unite," stipulated that Victorian
manufacturing industries must be considered. In a word, every one
was willing to federate; but Sir John Eobertson's idea of Federation
was the re-annexation of Victoria, Mr. Berry's idea was union under
the Victorian tarii?, and most of the others regarded it as a topic of
after-dinner oratory rather than a matter of practical politics.

But Avhilst the development of intercolonial relations was deepen-
ing the conviction that union was needed, the real motive power — the
stimulus to an active public interest — came from outside. Hitherto
Australia had regarded foreign complications as antipodean matters
which did not much concern her; but the external need of union was
brought home to all the colonies by the increased activity of foreign
Powers in the Pacific. In 1883 rumours became current of intended
annexations by France and Germany. The Germans were credited
with designs on New Guinea; and to forestall them Sir Thomas
Mcllwraith, Premier of Queensland, sent a magistrate to that island
in April to take possession in the name of the Queen. His action,
though generally approved in the colonies, was disavowed by the
Home Government. The French, moreover, were openly coveting
the New Hebrides, and were reported to be arranging to transport to
New Caledonia a large number of recidivutes, or habitual criminals.

In this emergency the colonies found that disunion hampered
them in making proper representations to the Imperial Government,
and weakened the effect of what representations they made. Here
was a practical and convincing argument for Federation; and it was
made the most of. The Executive Council of Queensland, on 17th
July, 1883, resolved that the Home Government should be invited to
move in the direction of a federal union. What was Avanted, however,
was not Imperial action, but Australian action ; and Mr. James
Service — true to his promise at the Albury banquet — took the more
practical step of urging an intercolonial conference. Accordingly,
on 28th November, a "Convention" met in Sydney, at which the
seven colonies were represented, and also Fiji.

Mr. Service immediately submitted a set of resolutions urging
the annexation of, or a protectorate over, East New Guinea and the

THE FEDERAL MOVEMENT IN AUSTRALIA 111

West Pacific Islands from the equator to the New Hebrides, in order
to prevent them falling into the hands of foreign powers ; aflSrming
that the colonies were willing to bear a share of the cost ; protesting
against the French recidiviste proposals ; and concluding with the
following resolution : — " That, in view of the foregoing resolutions,
and of the many subjects of pressing importance on which the
colonies, though of one mind, are unable to obtain united action
owing to the absence of some common authority, the time has now
arrived for drawing closer the ties which bind the colonies to each
other by the establishment of a Federal Union in regard to such
matters as this Convention shall specifically determine/'

It is certain that Mr. Service had in his mind the establishment
of a real federal Government. The other delegates, however, were
not prepared to go to this length ; and Mr. (afterwards Sir) Samuel
Grifiith, Premier of Queensland, submitted the following resolution in
favour of a Federal Council : —

" That it is desirable that a Federal Australasian Council should
be created for the purpose of dealing with the following matters ; —

" 1. The marine defences of Australasia, beyond territorial limits.

" 2. Matters affecting the relations of Australasia with the islands
of the Pacific.

" 3. The prevention of the influx of criminals.

" 4. The regulation of quarantine.

" 5. Such other matters of general Australasian interest as may
be referred to it by Her Majesty or by any of the Austra-
lian Legislatures."

Mr. Griffith's resolution was adopted, and on 3rd December a
Committee was appointed, with Mr. William Bede Dalley (then
Attorney-General of New South Wales in the Stuart Ministry) as
chairman. The following day the Committee brought up its report,
together with a " Bill to establish a Federal Council of Australasia,"
of which Mr. Griffith was the draftsman. The Bill was somewhat
altered in Committee, the powers of the Federal Council (partly in
consequence of outside criticism) being considerably reduced. The
Bill provided for a Federal Council, and was to affect only those
colonies whose legislatures passed Acts adopting it. It was not to
come into force until four colonies at least had passed such adopting
Acts. Each colony was to have two representatives, except Crown
colonies, which were to have one each ; and the mode of their appoint-
ment in each colony was left to the legislature. The first session was
to be at Hobart, and subsequent sessions wherever the Council itself
should decide.

The Council was to be a legislature merely, with no executive
powers, and no control over revenue or expenditure. And even its
legislative powers were very scanty. The matters over which it was
given an independent legislative authority were only seven. Foremost
of these were " the relations of Australasia with the islands of the
Pacific," and "prevention of the influx of criminals" — the two burn-
ing questions which had led up to the Convention. The others related
to fisheries in Australasian waters outside territorial limits, the service
of civil process beyond the limits of a colony, the enforcement of judg-

112 HISTORICAL INTRODUCTION.

ments and of criminal process beyond the limits of a colony, the
extradition of oifenders, and the custody of offenders on Government
ships beyond territorial limits. Those were the only matters on which
the Council could legislate of its own motion. But there was a second
list of matters which the legislatures of two or more colonies mi-ght
refer to the Council, and on which the Council might then legislate,
but only so as to affect the referring or adopting colonies. This list
of matters, as to which the Council could only legislate by request,
comprised defence, quarantine, patents and copyright, bills of exchange
and promissory notes, weights and measures, recognition of marriage
and divorce, naturalization, status of corporations, and " any other
matter of general Australasian interest with respect to which the
legislatures of the several colonies can legislate within their own
limits, and as to which it is deemed desirable that there should be a
law of general application.'^ All laws of the Council were to be pre-
sented, for the Royal assent, to the Governor of the colony in which
the Council was sitting.

The Bill was adopted by the Convention in the following resolu-
tion : — " That this Convention, recognizing that the time has not yet
arrived at which a complete federal union of the Australasian colonies
can be attained, but considering that there are many matters of
general interest with respect to which united action would be advan-
tageous, adopts the accompanying draft Bill for the Constitution of a
Federal Council, as defining the matters upon which such united action
is both desirable and practicable at the present time, and as embody-
ing the provisions best adapted to secure that object, so far as it is
now capable of attainment." A resolution was also passed pledging
the Governments of the several colonies to invite their Legislatures to
pass addresses to the Queen praying for legislation on the lines of the
Draft Bill.

Meanwhile the proceedings of the Convention, and the Constitu-
tion of the proposed Federal Council, were being severely criticised in
the Sydney press, and also in the New South Wales Parliament. The
Convention had sat with closed doors ; and it seems that at one time,
in its zeal for prompt action, it had contemplated asking the Home
Government to pass the Bill at once, without reference to the Legisla-
tures. Even the agreement arrived at only gave the Legislatures the
option of accepting or rejecting the scheme as it stood, and gave them
no voice in deciding its details. There was a strong feeling in Sydney
against making so important a constitutional change with so little con-
sideration ; and the Bill itself was objected to because the Council, to
which power was given to override the local Legislatures, was merely
a small, peripatetic, and more or less irresponsible body of delegates.
Objection was made, in fact, to handing over powers of federal legis-
lation to any less important and less representative a body than a real
Federal Parliament. y^

In July and August, 1884, addresses to the Crown, praying for
the enactment of the Federal Council Bill, were passed by the Legis-
latures of Victoria, Tasmania, Queensland, Western Australia, and Fiji.
New South Wales and New Zealand, however, stood aloof. In New
South Wales the Government pleaded the pressure of more important

THE FEDERAL MOVEMENT IX AUSTRALIA. 113

business for not dealing promptly with the matter. In the Legislative
Assembly, on 25th March, a resolution had been carried, at the
instance of Mr. L. F. Hejdon, affirming that no Federal Council Bill
should be enacted by the Imperial Parliament until it had been sub-
mitted to the Leofislature of New South Wales. In the Legislative
Council, in July, there had been considerable debate on resolutions
moved by the Hon. John Stewart, protesting against any annexation
of New Guinea as an unjustifiable interference with the liberty of the
natives, and affirming that "any attempt to establish a Federal
Government, having legislative jurisdiction over two or more colonies,
is not at present necessary or desirable." The resolutions were
eventually shelved by the "previous question." On 7th August, in
consequence of telegraphic news from London that the Federal Council
Bill was likely to be proceeded with shortly, Sir Alexander Stuart, the
Premier of New South Wales, telegraphed to the Agent-General that
such action would be premature until the Parliament of New South
Wales had expressed an opinion. Political opinion in New South
Wales was very much divided, and the attitude of the Government was
consistently cautious and non-committal. At last, on 30th October,
the resolutions were brought before both Houses — in the Assembly
by the Treasurer, Mr. (afterwards Sir) George R. Dibbs, and in the
Council by Mr. W. B. Dalley. In the Council the resolutions were
carried by 13 votes to 9 ; in the Assembly they were defeated by one
vote. Sir John Robertson and others frankly opposed union on the
ground of mistrust of the other colonies ; but the most general objec-
tion was that the scheme was premature, ill-conceived, and ineffective.
The speech to which the most interest attaches was that of Sir Henry
Parkes. He had taken no part in the proceedings of the " Conven-
tion," having been on a trip to England from early in 1883 until
August, 1884. Since 1881, however, he had entirely changed his
views as to the desirability of a Federal Council ; and in his speech in
opposition to the proposal he explained his position. His scheme of
1881 had been tentative, and avowedly designed to awaken interest
in the question of Federation. He had long since given it up as
impracticable. Federation had since become a living national ques-
tion, and the proposed scheme for a Federal Council, besides being
unauthorized in its origin, was incurably defective. The Council
would be a " ricketty body," composed of a very few members, and
unfit to be entrusted with the power of overriding the local Parlia-
ments. It would not only cause dissatisfaction and conflict, but it
would " impede the way for a sure and solid Federation."

" Is it not better," he said, " to let the idea of Federation mature, to
grow in men's minds, until the time comes when we can have a solid,
enduring Federation ? No good object can be served by creating a
body such as this Council. It will add to our strife, it will add to our
dissatisfaction with the working of our institutions, it will lead to
endless complications, and it must result, at a very early stage, in an
entire breakdown. It has not any inherent power, the Legislatures
of these free countries will never give it inherent power, and it can
never exist for any useful purpose. Considering the proud position in
which we stand now — as free as any country in the world, with power

lU HISTORICAL INTRODUCTION.

to govern ourselves and maintain an attitude which commands the
respect of great nations — we had better avoid joining in making a
spectacle before the world which would cover us with ridicule." (See
also Parkes' ''Fifty Years in the Making of Australian History,"
p. 503.)

New South Wales and New Zealand, therefore, stood out of the
Federal Council scheme. Nevertheless the Home Government, acting
on the addresses passed in the other colonies, decided to carry it
through; and on 23rd April, 1885, the Earl of Derby introduced the
Bill, somewhat apologetically, in the House of Lords. He admitted
that it was a rudimentary and imperfect measure, but it was what the
colonies had asked for, and would make a beginning. A good deal
hung on whether New South Wales would come into the union or not,
but he hoped that the objections of the Legislature would not be
permanent. A real Federation was impossible for a time, owing to
the difference of fiscal policy ; the colonists themselves did not wish
it, and did not think themselves ripe for it.

The Bill thus introduced differed in a few respects from the Bill
adopted by the " Convention." In the first place, a provision was
inserted giving any colony the power to secede from the Council.
This was done in the hope that New South Wales might thereby be
induced to join, one of the objections of that colony being the irre-
vocableness of the compact. Next, power was given to the Queen, at
the request of the colonies, to increase the number of members of the
Council. It was hoped that this might lead to the gradual expansion
and development of federal institutions. Lastly, the Council was
given an additional power to legislate on any matter which, at the
request of the colonial legislatures, the Queen should think fit to refer
to it. The Home Government had further suggested a clause dealing
with the question of expenditure involved in the action of the Council;
but this was so strongly objected to by the colonial Governments that
it was dropped, and in matters involving expenditure the Council was
left powerless to do anything but advise or recommend.

The Bill passed through the British Parliament with very little
debate. In the Lords it was supported by the Earl of Carnarvon,
who had actively promoted the Canadian Union in 1867, and had
endeavoured to secure a similar result among the South African
colonies and States by the abortive " South African Union Act,
1877." In the Commons, it was opposed by Sir George Campbell on
the ground that the colonies would do better by developing their own
territory than by meddling with the islands of the Pacific; and it was
severely criticised by Mr. James Bryce, who regarded it as " a very
scanty, fragmentary, and imperfect sketch of a Federal Constitution,"
which did not seem to have been satisfactorily discussed in the
colonies.

The Federal Council of Australasia Act, 1885, became law on
14th August. Between September and December in the same year
the five colonies of Western Australia, Fiji, Queensland, Tasmania,
and Victoria, in that order, passed adopting Acts ; and all those
colonies sent representatives to the first meeting of the Federal
Council, which was held at Hobart from 25th January to 5th

THE FEDERAL MOVEMENT IX AUSTRALIA. 115

February, 1886. It began in a business-iike way by passing an
Interpretation Act, to govern the interpretation of federal statutes,
and an Evidence Act to prescribe the mode of proving them in Court.
It then began its substantive legislative work by passing Acts for the
intercolonial service of civil process and enforcement of judgments.
At its second session, in January, 1888, it passed an Act to regulate
the Queensland Pearl-shell and Beche-de-mer fisheries beyond terri-
torial limits ; and at its third session in 1889 it passed a similar Act
with respect to A\ est Australian fisheries. Meanwhile, in December,
1888, South Australia passed an adopting Act agreeing to join the
Council for a period of two years. From 1891 to 1899 it met in
alternate years, but did little to justify its existence ; a fact which its
friends ascribed to the aloofness of Xew South Wales. Possibly if
New South Wales had joined, there might have been a few more
federal statutes passed ; but the powers of the Council were too scanty
to enable it to be of any great service.

Fiji, though not withdrawing fi'om the Council, was never repre-
sented after the first meeting. In 1892 Mr. F. W. Holder, Premier
of South Australia, introduced a Bill to enable his colony to re-enter
the Federal Council ; but it was rejected by the Upper House. The
new movement for a national Convention had already made it clear
that the road to Australian Federation lay in another direction.
Efforts, however, were still made to extend the sphere of the Council's
work. Acts referring different matters to the Council were passed in
some of the colonies, but without practical result. In 1893, also, the
Legislatures of all the colonies represented requested the Queen to
increase the number of membere ; and accordingly, by Order-in-
Council of 3rd March, 1894, it was directed that each colony (except-
ing Crown colonies) should have five representatives. But all efforts
to galvanize the Council into life were unavailing; and in January,
1899, it met at Melbourne for the last time.

(7) THE COMMONWEALTH BILL OF 1891.

Federal Defence. — The great effort at Federation which led to
the framing of the Commonwealth Bill of 1891 had for its immediate
stimulus the recognized need of a national system of defence. The
history of the new movement may, therefore, be appropriately intro-
duced with a brief review of the attempts to deal with this subject.

The question of colonial defence began to assume prominence in
1878. In the previous year Lord Carnarvon (Secretary of State for
the Colonies) had commissioned Lieutenant-General Sir W. D. Jervois
to report upon the defences of the Australian colonies — a task which
he carried out with the assistance of Lieutenant-Colonel Sir Peter
Scratchley. As a result, the several colonies re-organized and increased
their military forces, and devoted large sums to harbour defences and
fortifications. The naval defence of Australia, and of Australian
trade, was. still left almost wholly to the Imperial Government ;
though Yctoria established a small navy for the defence of Port

116 HISTORICAL INTRODUCTIOK

Phillip, and New South Wales spent considerable sums upon the
naval station at Sydney.

At the Intercolonial Conference held in Sydney in 1881 (seep. 107,
supra) it was resolved that the xiustralian squadron ought to be
increased and ought to be the sole charge of the Imperial Government ;
the colonies on their part undertaking their own land defences. The
Home Government, however, thought that Australia ought to contri-
bute towards the naval defence of her own trade; and a lloyal Com-
mission which had been appointed in England in 1879, with Lord
Carnarvon as chairman, " to enquire into the defence of British
possessions and commerce abroad," endorsed this view in its second
report, dated 23rd March, 1882. In 1885 Admiral Sir George Tryon
was appointed to the command of the Australian station, with instruc-
tions to discuss the matter; and owing to his negotiations some
approach was made to an understanding. At the Colonial Conference
held in London in April and May, 1887, presided over by Sir Henry
Holland, and attended by representatives from all the British posses-
sions, the basis of an agreement was settled, subject to ratification by
the Australian Parliaments,

This agreement provided for an auxiliary fleet to be equipped and
maintained at the joint expense of Great Britain and the colonies. No
reduction was to take place in the normal strength of the Imperial
fleet on the Australian station. The auxiliary fleet was to consist of
five fast cruisers and two torpedo gunboats of the Archer (improved
type) and Rattlesnake classes; of which three cruisers and one gun-
boat were to be kept always in commission, and the remainder held in
reserve in Australasian ports. Great Britain was to pay the first cost
of these vessels, and the colonies were to pay interest at five per cent.
on the first cost to a sum not exceeding £35,000, and also the actual
cost of maintenance, not exceeding £91,000, making a total of £126,000
a year, which was to be contributed by the colonies on a population
basis. The fleet was to be under the control of the Naval Commander-
in-Chief on the Australian Naval Station, and was to be retained
within the limits of the station, which is bounded as follows : —

(N.) On the north, from the meridian of 95"^ E. long, by the
parallel of 10° S. lat. to the meridian of ISO"" B. long. ;
thence northward on that meridian to the parallel of 2*^ N.
lat., and thence on that parallel to the meridian of 136° E.
long.; thence northward to 12*^ N. lat., and along that
parallel to 160° W. long.

(W.) On the west by the meridian of 95° E. long.

(S.) On the South by the Antarctic circle.

(B.) On the east by the meridian of 160° W. long.
. In peace or war, the ships were not to be employed beyond those
limits without the consent of the colonial Governments. The agree-
ment was to be for ten years, and only terminable, after that time, by
a two years' notice.

This agreement was ratified, within a few months, by '' Austral-
asian Naval Force Acts," passed in the colonies of Victoria, South
Australia, New South Wales, Tasmania, New Zealand, and Western
Australia. The Queensland Parliament at first declined to ratify, but

THE FEDERAL MOVEMENT IN AUSTRALIA. 117

eventually came into line with the other colonies by passing the
Australasian Xaval Force Act, 1891. The Imperial Parliament made
provision for its share of the expenditure by the Imperial Defence
Act, 1888 (51 and 52 Vic. c. 32). The auxiliary fleet arrived at"
Sydney on 5th September, 1891.

With respect to naval defence, therefore, some degree of federal
action had been attained ; but with regard to military defence it was
otherwise. Each colony had a separate military force, consisting chiefly
of partially paid or unpaid volunteers, with a small permanent force.
There was no uniformity of organization or equipment, and no co-
operation. The (Imperial) Army Act, 1881 (44 and 45 Vic. c. 58,
s. 177), provided that " where any force of volunteers or of militia, or
any other force, is raised in India or a colony, any law of India or the
colony may extend to the officers, non-commissioned officers, and men
belonging to such force, whether within or without the limits of India
or the colony." There was some doubt, however, whether this section
was sufficient to authorize the employment of the troops of one colony
in another colony. See remarks by Sir Samuel Griffith, Proceedings
of the Colonial Conference of 1887, pp. 294, 438-40.

The Colonial Conference of 1887 suggested that an Imperial
officer should be appointed to report on the defences of the Australian
colonies. In 1889 Major-General Sir J. Bevan Edwards was commis-
sioned by the Home Government to inspect the military forces and
defences of the Australian colonies, and to report on them. He
accordingly made separate reports (dated 9th October, 1889) in respect
of each colony, to which he attached a memorandum containing pro-
positions for the re-organization of the forces of all the colonies. The
points on which he laid stress were : —

(1.) The federation of the forces of all the Australian colonies.

(2.) The appointment of an Imperial officer, to advise and inspect
in peace, and to command in war.

(3.) A uniform system of organization and armament, and a
common Defence Act.

(4.) Amalgamation of the permanent forces into a fortress corps.

(5.) A federal military college for the education of officers.

(6.) The extension of the rifle clubs.

(7.) A uniform gauge for railways.

(8.) A federal small-arms manufactory, gun-wharf, and ordnance
store.

Sir Henry Parkes. — Earlier in 1889 Sir Henry Parkes, in a
confidential correspondence with Mr. Duncan Gillies, Premier of Vic-
toria, had suggested the creation of a Federal Parliament and Execu-
tive. In reply, Mr. Gillies had expressed the fear that the fiscal
difficulty was insuperable at present, and had urged the claims of the
Federal Council as the first step towards union.

On receipt of Major-General Edwards' memorandum, Sir Henry
Parkes, on 15th October, telegraphed to the other Premiers suggesting
a consultation on the sutDJect. On the 22nd Mr Gillies telegraphed a
reply to the effect that a mere Conference would probably be barren
of results, as the local Parliaments had no power to frame the
necessary federal legislation. He pointed out that the necessary

118 HISTORICAL INTRODUCTION.

Imperial authority was already provided by the Federal Council Act,
which enabled the Federal Council, upon a reference by the local
Parliaments, to legislate as to " g-eneral defences." He therefore
urged that Sir Henry Parkes should recommend his Parliament to
give in its adhesion to the Federal Council.

This suggestion did not meet Sir Henry Parkes' approval. He
had been watching the signs of the times, and had come to the con-
clusion that the popular sentiment was now ripe for a definite federal
movement, at the head of which he resolved to place himself. At the
time he was on a short visit to Brisbane, where he had been in consul-
tation with, and had received encouragement from, the leading men
of both political parties ; and on his return journey he was no sooner
within the territory of New South Wales than he opened out, at Ten-
terfield, with his famous speech of 24th October. He seized the
opportunity of Major-General Edwards' I'eport to emphasize the
necessity of federal defence. For this purpose the Federal Council
would be altogether inadequate, because it had no executive power,
and it was not directly representative. Nor would it be enough to
ask the Imperial Parliament to pass an Act authorizing the troops of
the colonies to unite in one federal army under Imperial control.
What was wanted was a strong central executive, under the control
of the Australian people.

He believed that federal defence was necessary to the security of
the colonies; and "feeling this, and seeing no other means of attain-
ing the end, it seemed to him that the time was close at hand when
they ought to set about creating a great national Government for all
Australia. . . . As to the steps which should be taken to bring
this about, a conference of the Governments had been pointed to, but
they must take broader views in the initiation of the movement than
had been taken hitherto ; they must appoint a Convention of leading
men from all the colonies — delegates appointed by the authority of
Parliament who would fully represent the opinion of the different
Parliaments of the colonies. This Convention would have to devise
the Constitution which would be necessary for bringing into existence
a Federal Government with a Federal Parliament for the conduct of
national business."

Having thus set the ball rolling, Sir Henry Parkes, on 30th
October, wrote to Mr. Gillies, reiterating his views as to the Federal
Council, and making a definite proposition for the summoning of a
Convention. " Believing that the time is ripe for consolidating the
Australias into one, this Government respectfully invites you to join
in taking the first great step — namely, to appoint representatives of
Victoria to a National Convention for the purpose of devising and
reporting upon an adequate scheme of Federal Government." He
suggested that, in order to avoid any sense of inequality in debate or
any party complexion, the number from each colony should be the
same, and should be equally chosen from both sides in political life ;
and he further suggested six members from each colony as a con-
venient number. The form of union he had in mind is best described
in his own words : — " The scheme of federal government, it is assumed,
would necessarily follow close upon the type of the Dominion Govern-

THE FEDERAL MOVEMENT I:N' AUSTRALIA. 119

ment of Canada. It would provide for the appointment of a Governor-
General, for the creation of an Australian Pm-y Council, and a Parlia-
ment consisting of a Senate and a House of Commons. In the work
of the Convention, no doubt, the rich stores of political knowledge
which were collected by the framers of the Constitution of the United
States would be largely resorted to, as well as the vast accumulations
of learning on cognate subjects since that time." Copies of this
despatch were also forwarded to all the other Australian Premiers,
with requests for their concurrence.

Mr. Gillies, however, was still diffident as to the immediate
practicability of a full-blown Federal Government. That the matter
might be fully considered, yet without altogether passing over the
Federal Council, he proposed to Sir Henry Parkes, in a letter of 13th
Xovember, that instead of a Parliamentary Convention the represen-
tatives of the various colonies to the Federal Council should meet
representatives from New South Wales to discuss and, if deemed
necessary, to devise and report upon a scheme of Federation. He
also suggested that, as the adoption of any .such scheme would take
time, New South Wales might advantageously join the Federal
Council in the meantime. The most pressing problems of defence
could be dealt with by mere federal legislation, such as the Council
could effect, without the need of any executive authority. The other
Premiers wrote in much the same strain ; and on 28th November Sir
Henry Parkes replied to Mr. Gillies consenting to " an informal meet-
ing of the colonies for the purposes of preliminary consultation."

Melbourne Coxferexce of 1890. — Accordingly a Conference met
in Melbourne on 6th February, 1890, at which the seven colonies
were represented by the following delegates, accredited by their
respective Governments : — New South Wales, Sir Henry Parkes
Premier) and Mr. William McMillan (Colonial Treasurer) ; Victoria,
^Ir. Duncan Gillies (Premier) and Mr. Alfred Deakin (Chief Secre-
tary) ; Queensland, Sir Samuel Walker Griffith (Leader of Opposition)
and Mr. John Murtagh Macrossan (Colonial Secretary) ; South Aus-
tralia, Dr. (afterwards Sir) John Alexander Cockburn (Premier) and
Mr. Thomas Playford (Leader of Opposition) ; Tasmania, Mr. Andrew
Inglis Clark (Attorney-General) and Mr. Bolton Stafford Bird
(Treasurer) ; Western Australia, Sir James George Lee Steere
(Speaker) ; New Zealand, Captain William Russell Russell (Colonial
Secretary) and Sir John Hall. Mr. Geo. H. Jenkins, C.M.G , Clerk of
the Parliament (Victoria), acted as clerk of the Conference.

At a banquet held in celebration of the assembling of the Con-
ference, two famous phrases originated. Mr. James Service, proposing
the toast of " A United Australasia," spoke of the tariff' question as
" the lion in the path," which federalists must either slay or be slain
by ; and Sir Henry Parkes, in responding, made his historic uttei-ance,
" The crimson thread of kinship runs through us all."

It was recognized from the first that the Conference was only
preliminary to a more representative and a more fully authorized
gathering. Mr. Duncan Gillies was elected President of the Confer-
ence, and the course of procedure adopted was to frame resolutions in
committee and to admit the pablic to the ensuing debates. The

120 HISTORICAL INTRODUCTION.

principal debate, which occupied four out of the seven sitting days of
the Conference, was on a motion by Sir Henry Parkes : — " That, in
the opinion of this Conference, the best interests and the present and
future prosperity of the Australian colonies will be promoted by an
early union under the Crown, and while fully recognizing the valuable
services of the Convention of 1883 in founding the Federal Council, it
declares its opinion that the seven years which have since elapsed
have developed the national life of Australia in population, in wealth,
in the discovery of resources, and in self-governing capacity to an
extent which justifies the higher act, at all times contemplated, of the
union of the colonies, under one legislative and executive government,
on principles just to the several colonies/'

This resolution met with no opposition. Everyone recognized
the need of a Federal Executive, and admitted the insufficiency of the
Federal Council. The " lion in the path " was made light of, most of
the delegates sharing Sir Henry Parkes' confident belief that the
colonies would be willing to entrust the tariff question to the free
decision of the Australian people; whilst Sir Samuel Griffith contended
that a federal tariff, though desirable, was not absolutely essential,
and that Federation without intercolonial freetrade would be better
than no Federation at all. Mr. Playford expressed himself dis-
appointed at Sir Henry Parkes' '^bald resolution," and would have
liked a series of resolutions indicating the proposed constitution in
outline. He also introduced " one or two notes of discord " by ques-
tioning the federal motives of Victoria, and the federal sincerity of
New South Wales. Sir James Lee Steere also asked for more
practical detail, and complained that " this motion was a kind of blank
shot fired across our bows by Sir Henry Parkes to make us show our
colours." He doubted whether Western Australia could afford to
sacrifice her provincial tariff, and he advocated a very limited Federa-
tion, by a process of development out of the Federal Council. The
other delegates heartily supported the motion, though some of them
still hoped that, pending the achievement of a national Federation,
New South Wales would join the Federal Council. Sir Henry Parkes
replied in an eloquent speech, in which he defined, for himself and his
colony, the high national standpoint from which he always looked, and
tried to urge others to look, at this great question. " The main object
for which, representing New South Wales, I stand here, is to say that
we desire to enter upon this work of Federation without making any
condition to the advantage of ourselves, without any stipulation what-
ever, with a perfect preparedness to leave the proposed Convention
free to devise its own scheme, and if a central Parliament comes into
existence, with a perfect reliance upon its justice, upon its wisdom,
and upon its honour. I think I know the people of New South Wales
sufficiently to speak in their name; and I think I can answer for it
that an overwhelming majority of my countrymen in that colony will
approve of the grand step being taken of uniting all the colonies
under one form of beneficent government, and under one national
flag."^

The debate was closed by Mr. Duncan Gillies, the President, who
was now beginning to take a more hopeful view of the prospects —

THE FEDERAL MOVEMENT IN AUSTRALIA. 121

''lions" not withstanding. " Xow there is no one who is more anxious to
see a great Federation — a Federation complete in the largest sense —
than I ani ; but I confess that I see great difficulties — not insuperable,
but great difficulties — in the way of bringing about this Federation,
and I am very much afraid that even when delegates are appointed

to the Convention our troubles will only have just begun

And when we meet, as I hope we shall shortly meet, in Convention, I
believe we shall be able, in thrashing out the whole of these questions,
to come to a solution that ^^all be satisfactory to the whole of our Par-
liaments. In fact, on the subject of the tariff, I feel perfectly confi-
dent that, if we are not able at once to level the barriers between the
colonies so far as customs duties are concerned, we shall be able to
arrive at some modification which will be satisfactory to all, and that
modification may be a very reasonable one." Sir Henry Parkes'
resolution was then unanimously agreed to, as were also the three
following resolutions : —

" 2. That to the union of the Australian colonies contemplated by
the foregroinof resolution, the remoter Australasian colonies

DO '

shall be entitled to admission at such times and on such
conditions as may be hereafter agreed upon.
" 3. That the members of the Conference should take such steps
as may be necessary to induce the Legislatures of their
respective colonies to appoint, during the present year,
delegates to a National Australasian Convention, empowered
to consider and report upon an adequate scheme for a
Federal Constitution.
" 4. That the Convention should consist of not more than seven
members from each of the self-governing colonies, and not
more than four members from each of the Crown colonies."
It was also agi'eed that the Premier of Victoria should convene
the Convention, and arrange, after consultation with the other
Premiers, the time and place of meeting.

Mr. Deakin then moved a further resolution, affirming that as the
adoption of a Federal Constitution must take some time, and united
action for defence and other purposes was a matter of urgency, " it is
advisable that the Federal Council be employed for such purposes so
far as its powers will permit, and with such an extension of its powers
as may be decided upon, and that all the colonies should be repre-
sented on the Council." This was, of course, an invitation for New
South Wales and New Zealand to reconsider their attitude with regard
to the Federal Council, and join that tentative body pending the
adoption of a Federal Constitution. He thought that this would not
only confer immediately the benefits of a partial union, but would also
facilitate and hasten a more complete union. " If the two outstanding
colonies," he said, " would only seek to induce their Parliaments to
enter temporarily into the Federal Council, and wed with us from
to-day, instead of putting off our marriage for two or three years,
they would give striking evidence of the strength of the federal
spirit." The representatives of the two truant colonies, however,
declined to entertain the proposal for two reasons : — First, that they
believed public opinion in those colonies to be against entering the

122 HISTORICAL INTRODUCTION.

Federal Council ; and next, that if the motion were carried, there was
danger that the lesser issue would overshadow the greater — or, as
Captain Russell put it, it was possible that if they were satisfied to go
into " the shanty of the Federal Council, they might never enter the
palatial mansion of a Dominion Governor." At the suggestion of
several delegates, Mr. Deakin withdrew the motion. The proceedings
closed with an address to the Queen, informing Her Majesty of the
resolutions arrived at.

Resolutions op the Paeliaments. — The Conference having thus
recommended a National Convention, the next step was to obtain the
requisite Parliamentary action. New South Wales led the way. On
7th May, Sir Henry Parkes introduced in the Legislative Assembly a
series of resolutions, affirming the concurrence of the House in the
resolutions of the Conference, appointing four members to act with
three members of the Legislative Council as delegates to a National
Convention to frame a Federal Constitution, and requiring " that the
Constitution, as adopted by the Convention, be submitted as soon as
possible for the approval of the Parliament of this colony." On the
same day similar resolutions were introduced by Mr. W. H. Suttor in
the Legislative Council. In both Houses a protracted debate followed,
extending, with many adjournments, over several months. In the
Assembly Mr. Greorge R. Dibbs, the leader of the Opposition, opposed
them strongly, announcing himself as in favour of an ultimate " com-
plete union " of Australia as an independent nation, but condemning
the scheme outlined by Sir Henry Parkes. Mr. J. H. Want also
opposed the whole scheme as being a fashionable fad. Mr. Gr. H.
Reid, while admitting the advantages of Federation, was not prepai-ed
to sacrifice the freetrade policy of the colony, and suggested an amend-
ment to make it clear that when the Constitution was drafted it should
be submitted to Parliament, not merely for approval or disapproval as
a whole, but for consideration in detail. Mr. T. M. Slattery moved an
amendment recommending a "mutual system of defence," and joint
action on a basis somewhat similar to that of the Federal Council,
with the addition of a general Court of Appeal ; but this was defeated
by an overwhelming vote of 92 against 10. The resolutions were
finally agreed to, on the voices, on 10th September. Some discussion
occurred over the delegates nominated by Sir Henry Parkes, inasmuch
as Mr. Dibbs, though opposed to the scheme, claimed a right to be
nominated. The question was settled by balloting for the delegates.
In the Council, the resolutions were not finally passed until the 8th
October. The whole discussion, in both Houses, showed a general
passive assent to the general principle of Federation, coupled, however,
with very divergent views as to the basis of union, considerable
jealousy and mistrust of the other colonies, and a disinclination on the
part of many members to any compromise on the tariff and other vital
questions. Theoretical federalists were many, but earnest federalists
were few ; a,nd there was as yet no popular impetus behind the move-
ment— nothing more than a vague intellectual and sentimental assent
to the principle.

In Victoria the matter was much more expeditiously dealt with.
Resolutions similar to those carried in New South Wales were intro-

THE FEDERAL MOVEMENT IX AUSTRALIA. 123

duced in the Legislative Assembly by Mr. Grillies on lOtli June, and
carried on the same day. An amendment moved by Sir Bryan
O'Loghlen, demanding a definite outline of the proposed scheme of
Federation before the House concurred in the resolutions, received
little support. In the Legislative Council, the resolutions were intro-
duced by Mr. (afterwards Sir) H. Cuthbert on 1st July, and carried
on 2nd July. Five delegates were appointed by the Assembly, and
two by the Council, the Council carrying a resolution regretting that
its right to a larger representation had not been recognized.

In the South Australian Assembly, the resolutions were moved
by Dr. Cockburn (Premier) in the Assembly on 26th June, were
supported by Mr. Thomas Play ford (Leader of Opposition), and
carried after considerable debate on 22ud July. In the Council they
were moved by Mr. J. H. Gordon on 24th June, and carried on 2nd
July. Five delegates were appointed by the Assembly and two by
the Council.

In Tasmania, the resolutions were moved in the House of Assembly
by Mr. B. S. Bird (Colonial Treasurer) on 3rd July, and passed on the
following day. They were then concurred in by the Council, and
delegates elected — four by the Assembly, two by the Council, and one
by both Houses together.

In Queensland, the resolutions were moved in the Assembly by
Mr B. D. Morehead (Premier) on 9th July, and carried on the 15th.
In the Council, they were moved by Mr. A. J. Thynne, on 23rd July,
and carried on 6th August. Five delegates were appointed by the
Assembly and two by the Council.

In New Zealand, Federation was a matter of remote interest, and
in spite of repeated inquiries by Sir George Grey as to the intentions
of the Government, nothing was done till 6th September, when
Captain Russell introduced the resolutions in the House of Represen-
tatives, with an addendum " that the delegates so appointed shall not
be authorized to bind this colony in any way." The debate showed a
friendly but non-committal interest in the question, the balancing
considerations being the Australasian trade of the colony on the one
hand, and its foreign trade on the other. The resolutions were
carried on the 12th September, and on the 15th were moved and
carried in the Council. Two delegates were appointed by the House
of Representatives and one by the Council.

In Western Australia nothing was done until the 23rd February,
1891, when the Federal Convention was on the point of meeting.
The resolutions were then moved and carried in both Houses on the
same day, and seven delegates were appointed — five members of the
Assembly and two of the Council.

The Sydney Convention of 1891. — The first National Australasian
Convention, " empowered to consider and report upon an adequate
scheme for a Federal Constitution," was duly convened at Sydney on
the 2nd March, 1891. The delegates from the several colonies were : —

New South Wales : Sir Henry Parkes (Premier), Mr. AY. McMillan
(Treasurer), Sir J. P. Abbott (Speaker), Mr. G. R. Dibbs (Leader of
Opposition), Mr. W. H. Suttor (Vice-President of Executive Council),
Mr. Edmund Barton, and Sir Patrick Jennings.

124 HISTORICAL INTRODUCTION.

Victoria : Mr. Alfred Deakin (ex-Chief Secretary), Mr. James
Munro (Premier), Lieuteuant-Oolonel W. Collard Smith, Mr. H. J.
Wrixon (ex- Attorney-General), Mr. Duncan Gillies (ex- Premier), Mr.
H. Cuthbert (ex-Minister of Justice), and Mr. Nicholas Fitzgerald.

Queensland : Mr. J. M. Macrossan (ex-Colonial Secretary), Mr.
John Donaldson (ex-Colonial Treasurer), Sir S. W. Griffith (Premier),
Sir Thomas Mcllwraith (Treasurer), Mr. A. Eutledge, Mr. A. J.
Thynne (ex-Mini ster for Justice), and Mr. Thomas Macdonald-
Patersou.

South Australia : Mr. Richard Chaffey Baker, Mr. John H.
Gordon (ex-Minister of Education), Sir John C. Bray (Chief Secre-
tary), Dr. John A. Cockburn (ex-Premier), Sir John W. Downer, Mr.
Charles C. Kingston, and Mr. Thomas Playford (Premier).

Tasmania : Mr. William Moore (President of Legislative Council),
Mr. Adye Douglas (ex-Premier), Mr. A. Inglis Clark (Attorney-
General), Mr. W. H. Burgess, Mr. Nicholas J. Brown (Speaker), Mr.
Bolton S. Bird (Treasurer), and Mr. Philip 0. Fysh (Premier).

Western Australia : Mr, John Forrest (Premier), Mr. W. E.
Marmion (Commissioner of Crown Lands), Sir James G. Lee Steere
(Speaker), Mr. John A. Wright, Mr. John W. Hackett, Mr. Alexander
Forrest, and Mr. W. T. Loton.

New Zealand : Sir George Grey, Captain W. R. Russell, and Sir
Harry A. Atkinson (Premier).

In each colony the delegates had been chosen from both sides of
political life; so that, although in three colonies (Victoria, Queensland
and South Australia) there had been a change of Ministry since the
appointment of delegates, yet the Premier of each colony was among
its representatives. Of the other delegates, nine were ex-Premiers,
whilst nearly all either were or had been Ministers of the Crown.

The first business done by the Convention was to appoint Sir
Henry Parkes as President — an honour accorded to him as being not
only the Premier of the colony where the Convention sat, but also
"the immediate author of the present movement." Sir Samuel
Griffith was appointed Vice-President. Mr. Frederick William
Webb, Clerk of the Legislative Assembly of New South Wales, was
appointed Secretary to the Convention. The question of the admis-
sion of the press and public was then dealt with. The general feel-
ing was that the debates, whether in Convention or in Committee of
the Whole, ought to be public ; and it was resolved " that the press
and public be admitted, unless otherwise ordered, during the sittings
of the Convention, on the order of the President.^'

Parkes' Resolutions. — Before entering on the task of drafting a
constitution, the Convention proceeded to debate at length a series of
resolutions proposed by Sir Henry Parkes, with the object of obtain-
ing a preliminary interchange of ideas, and of laying down a few
guiding principles. The discussion of these resolutions, first in a
general debate, and then in Committee, occupied eleven sitting days,
and fills more than half of the printed debates of the Convention.
These resolutions enunciated a few essential federal principles, and
outlined the basis of a federal legislature, judiciary, and executive ;
the text of them, as introduced, being as follows : —

THE FEDERAL MOVEMENT IN AUSTRALIA. 125

" That in order to establish and secure an enduring foundation
for the structure of a federal government, the principles embodied in
the resolutions following be agreed to : —

" 1. That the powers and privileges and territorial rights of the
several existing colonies shall remain intact, except in
respect to such surrenders as may be agreed upon as
necessary and incidental to the power and authority of the
National Federal Government.
" 2. That the trade and intercourse between the federated
colonies, whether by means of land carriage or coastal
navigation, shall be absolutely free.
" 3. That the power and authority to impose customs duties shall
be exclusively lodged in the Federal Government and
Parliament, subject to such disposal of the revenues
thence derived as shall be agreed upon.
"4. That the military and naval defence of Australia shall be

entrusted to federal forces, under one command.
" Subject to these and other necessary provisions, this Conven-
tion approves of the framing of a federal constitution, which shall
establish : —

"1. A parliament, to consist of a senate and a house of repre-
sentatives, the former consisting of an equal number of
members from each province, to be elected by a system
which shall provide for the retirement of one-third of the
members every years, so securing to the body itself

a perpetual existence combined with definite responsibility
to the electors, the latter to be elected by districts formed
on a population basis, and to possess the sole power of
originating and amending all bills appropriating revenue
or imposing taxation.
"2. A judiciary, consisting of a federal supreme court, which
shall constitute a high court of appeal for Australia,
under the direct authority of the Sovereign, whose
decisions, as such, shall be final.
" 3. An executive, consisting of a governor-general and such
persons as may from time to time be appointed as his
advisers, such persons sitting in Parliament, and whose
term of office shall depend upon their possessing the
confidence of the house of representatives, expressed by
the support of the majority."
The first draft of these resolutions had been framed by Sir Henry
Parkes before the Convention met, and submitted by him to an
informal meeting of the New South Wales delegates. (See Parkes'
Fifty Years in the Making of Australian History, pp. 603-6.) This
original draft differed in several important respects from the resolu-
tions as moved. The clause as to the reservation of the " powers and
privileges and territorial rights " of the colonies was absent from the
original draft ; but there was a clause providing for a federal High
Commission to devise '' an equitable scheme for the distribution of the
public lands, and the satisfying of existing territorial rights," such
scheme keeping in view both the necessary strength of the National

126 HISTORICAL INTRODUCTION.

Government and the just claims of the respective provinces. This
High Commission was to be appointed by at least a two-thirds
majority of the colonies, and was to report within two years; the
final settlement to be made by a federal law, approved by a majority
of the provincial Parliaments. In drafting this clause, Sir Henry
Parkes had in view the vast unoccupied areas in North Queensland,
the Northern Territory of South Australia, and Western Australia ;
but his colleagues urged that any mention of the public lands would
be inadvisable, and he deferred to their opinion. The first draft
moreover provided for the disposal of customs revenues not merely
" as shall be agreed upon," but " as shall be approved by the Federal
and Provincial Parliaments." The clause as to defence provided for
the raising of bodies of Militia or Volunteers by the Federal Parlia-
ment. As to the Senate, the retirement of members was to be
"one-third every seven years." The provision that the House of
Representatives was to " possess the sole power of originating and
amending all Bills appropriating revenue or imposing taxation " was
absent ; as were also the words requiring that the members of the
federal executive should sit in Parliament. And lastly, the federal
Supreme Court was to consist of " not fewer than ten judges." The
resolutions as submitted were therefore the President's own draft, as
amended after consultation with his colleagues. He proposed them,
not as embodying his final convictions, but as a ground-work of
debate, and as expressing an outline of the required Constitution as
it existed in his own mind. They were based, beyond all doubt, on a
comparative study of the Constitutions of the United States and
Canada. The fundamental principles of union thus laid down were
— intercolonial freetrade, a federal tariff, federal defence, and the
reservation of provincial rights in provincial matters ; whilst the
essential features of the proposed national machinery were — a
complete national government, with legislative, judicial, and executive
departments ; a legislature of two chambers, representing respectively
the States and the nation ; and a system of responsible government.

Sir Henry Parkes prefaced his exposition of these resolutions by an
appeal to the Convention to enter upon the work " in a broad federal
spirit." " We cannot hope for any just conclusion — we cannot hope
reasonably for any amount of valid success — unless we lose sight, to a
large extent, of the local interests which we represent at the same time
as we represent the great cause. There can be no Federation if we
should happen, any of us, to insist upon conditions which stand in the

way of Federation It does seem to me in the highest

degree necessary that we should approach the general question in the
most federal spirit that we can call to our support."

In the general discussion which followed, most of the delegates
took part. As to the greater part of the resolutions there was
practical unanimity. The discussion turned mainly on the powers of
J the two Houses, and their relation to the executive. Sir Samuel
Griffith began by arguing that the double principle of representation
logically involved the proposition that every federal law should receive
the assent of a majority of the people and a majority of the States.
The Senate ought to have an absolute power of veto, and to refuse it

THE FEDERAL MOVEMENT IN AUSTRALIA. 127

the power of amending money bills was to refuse it the power of
" veto in detail " as to those Bills. He admitted that the principle of
two co-ordinate Houses was new in conjunction with responsible
government, and thought that the Constitution should be elastic
enough to allow the problem of the responsibility of Ministers to Par-
liament to work out its own development. The Senate's power to
amend money bills was supported by the representatives of all the
smaller colonies, but was vehemently opposed by the Victorian dele-
gates (with the exception of the veteran Legislative Councillor, Mr.
Nicholas Fitzgerald). The New South Wales representatives were
divided on the subject. In Victoria — which, curiously enough, was
the only colony whose Constitution expressly forebade the Upper
House to amend money bills — there had been serious deadlocks on
financial matters, and the financial predominance of the Lower House
was a prominent article of political faith. Mr. Deakin, however,
admitted that the degree of power Avhich might be entrusted to the
Senate would depend largely on the mode of election adopted; and
Mr. Cuthbert threw out the idea that the matter might be compro-
mised by the South Australian method of allowing the Senate to
" suggest " amendments. The problem of responsible government
with a strong Senate was discussed, and Mr. Hackett propounded the
dilemma that "either responsible government would kill federation,
or federation would kill responsible government." Mr. Munro raised
the difl&culty that the Senate's power of absolute veto meant power for
the minority to rule. Mr. Deakin objected to the veto being extended
to all kinds of legislation, whether State-rights were involved or not ;
and Mr. Barton pointed out that State-interests as well as State-
rights were involved. In fact, all the elements of the subsequent dis-
cussions on " State-rights " and " majority rule " were present at the
outset — except that there was no suggestion as yet of constituting the
Senate in any other way than by equal representation.

The fiscal question was also prominent in the debate. Some of
the Victorians suggested a " guarantee " against ruthless interference
^vith the vested interests created by their protective policy. They asked
that it should be made clear that intercolonial freetrade was not to
come about until the federal tariff was in force, and further suggested
that for the first few years it should not be possible to reduce existing
duties too suddenly. The latter suggestion, however, was somewhat
satirically criticised by the representatives of other colonies, and was
not pressed. The general feeling was that the fiscal policy of
Australia must be absolutely entrusted to the Federal Parliament.

One or two other elements of discord obtruded themselves during
the debate. Sir George Grey, following the precedent of the original
Constitution of New Zealand, proposed to place no limits on the
legislative scope of the Federal Parliament — thus reducing the State
legislatures to subordinate bodies ; he also advocated the election of
the Governor-General by the people, and believed it to be " the duty
of the Convention" to give the electors of each State full power to
reform their own Constitutions — an end which should be achieved by
the simple process of gi^ang them elective Governors and elective
Legislative Councils. This proposal to meddle with the State Consti-

128 HISTORICAL INTRODUCTION.

tutions received no support at all. Mr. Dibbs next threw into the
Convention the "bombshell" of the federal capital — a bombshell
which, however, failed altogether to explode.

The Resolutions in Committee — The Convention then, on 13th
March, went into Committee of the Whole to consider the resolutions
in detail. Some discussion took place on the advisability of amplify-
ing the resolutions for the better guidance of those who might be
appointed to draft a Bill. On Mr. Deakin's motion, the paragraph
vesting exclusively in the Federal Parliament the power to impose
customs duties was extended to duties of excise, but with the limitation
— designed to prevent the unfair treatment of the products of any
colony — that such duties should only be imposed "upon goods the
subject of customs duties." On Mr. Gordon's motion, the paragraph
was further extended to include the offering of bounties.

But the main debate, extending over two days, was on the power
of the Senate with regard to money bills. This was the critical
question which divided the Convention, and as to which the watch-
word of " compromise " was not at first listened to. Sir Henry
Parkes' resolution proposed to give the House of Representatives
"the sole power of originating and amending all Bills appropriating
revenue or imposing taxation." The smaller States, however, claimed
for the Senate "co-equal powers," with the sole exception of initiating
money Bills ; they asked for full powers of amendment and rejection
— of "veto in detail" and "veto in bulk." An amendment by Sir
John Downer, to strike out the words "and amending," was agreed
to, by way of preliminary, not as deciding the question, but as leaving
it open for discussion. The real battle then took place on two
amendments : one by Sir John Downer, giving the Senate " the power
of rejecting in whole or in part any of such last-mentioned Bills;"
the other by Mr. Wrixon, providing (1) that the powers of the
Houses should be equal except with regard to money Bills, which the
Senate should be entitled to affirm or reject, but not to amend ; and
(2) that it should be unlawful to "tack" anything to the annual
appropriation Bill. Sir John Downer's amendment represented prac-
tically the extreme claims of the small States ; Mr. Wrixon's that of
the large States, with the provision against " tacking" thrown in as a
concession. The debate became warm ; neither side seemed inclined
to give way, aud hints were thrown out that the delegates might as
well " pack up their portmanteaux." At last, however, the " spirit
of compromise" was successfully appealed to; and though no basis of
compromise could as yet be found, it was agreed not to press the
matter to a vDte at that stage, but to withdraw both amendments and
let the decision stand over.

The resolution dealing with the executive was amended by leaving
out the words which provided that Ministers should sit in Parliament,
and that their term of office should depend on the confidence of the
House of Representatives, it was not deemed advisable to stereotype
the conventional rules of responsible government in this way. Sir
Samuel Griffith thought it ought to be distinctly provided, as in the
Constitutions of the colonies, that Ministers "may" sit in Parliament;
but it was decided to leave the whole question open till a later stage.

THE FEDERAL MOVEMENT IN AUSTRALIA. 129

The judiciary resolution was amended by omitting the provision
that the decisions of the Supreme Court should be final, and this
question also was left open. On Mr. Barton's motion, a resolution
was added to forbid the subdivision or amalgamation of States without
the consent of the Legislatures of the States concerned. Sir George
Orey moved a resolution to allow the people of each State "to adopt,
by the vote of a majority of voters, their own forms of State Consti-
tution." This was objected to, as being an interference with the
States. It was agreed, however, that the States ought not to have to
go to the Imperial Government for power to change their Constitu-
tions, and it was resolved "that provision should be made in the
Federal Constitution which will enable each State to make such
amendments in its Constitution as may be necessary for the purposes
of the Federation." The resolutions, as amended, were then
reported and agreed to.

Appointment of Committees. — So far, the formal result of the
Convention's work was merely a few resolutions, dealing with matters
of general principle, and no decision had been reached upon any of
the critical questions. The discussion, however, had pretty well
tested the feelings of the Convention, and the time was now ripe to
formulate the details of a complete scheme in the shape of a Bill.
Accordingly, on 18th March, resolutions were passed for the appoint-
ment of three Committees ; one, consisting of three members from
each delegation, to consider constitutional machinery ; a second, con-
sisting of one member from each delegation, to consider finance,
taxation, and trade regulation ; and a third, consisting of one member
from each delegation, to deal ^vith the judiciary. The two latter
Committees were to report to the Constitutional Committee, which
was to prepare and submit to the Convention a Bill for the establish-
ment of a Federal Constitution. The different delegations made their
own nominations to these Committees, which were composed as
follows : —

Constitutional Committee : Sir H. Parkes, Mr. Barton, Mr.
Gillies, Mr. Deakin, Sir Samuel Griffith, Mr. Thynne, Mr. Playford,
Sir John Downer, Mr. Clark, Mr. Douglas, Sir Geo. Grey, Captain
Eussell, Mr. John Forrest, Sir James Lee-Steere.

Finance Committee : Mr. McMillan, Mr. Munro, Sir Thomas
Mcllwraith, Sir John Bray, Mr. Burgess, Sir Harry Atkinson, Mr.
Marmion .

Judiciary Committee : Mr. Dibbs, Mr. Wrixon, Mr. Rutledge, Mr.
Kingston, Mr. Clark, Sir Harry Atkinson, Mr. Hackett.

These Committees set to work on 19th March, and in the course
of the next twelve days was framed the first draft of a Bill to constitute
the Commonwealth of Australia. The framing of that Bill marks an
epoch in the history of the movement. In those few days Federation I
came down from the clouds to the earth ; it changed from a dream \
to a tangible reality. The idea was once for all crystallized into a /
practical scheme, complete in all its details. As to many of the
details, and even many of the principles, there was still to be keen
and protracted dispute ; but with their definition the era of vague
generalities ended, and the era of close criticism began.

130 HISTORICAL INTRODUCTION.

So important was the work of the Convention, and so great was
its influence in the development of the Constitution, that it is
necessary to review the material which the Convention had at their
disposal. First of all, they had the Constitution Acts of the several
colonies — all drawn from the common model of the British Constitu-
tion, but all differing from it and from one another in many important
respects. Then they had their own experience, as practical politicians,
of the working of those Constitutions, and a close familiarity with
their merits and defects. As some guide to the form of union needed,
they had the various reports and debates which made up the history
of the federal movement in Australia — a history in whose more recent
stages many of the delegates had been actors. As a warning of faults
to avoid, they had the example of the weak and impotent Federal
Council — just as the Philadelphia Convention of 1787 had the example
of the earlier confederation. Lastly, as models of fedei-al government,
they had the constitutions of the United States of America and the
Dominion of Canada — and, in a less degree, of the Swiss Eepublic —
together with all the critical, historical, philosophical, and constitu-
tional literature on the subject of federal systems and institutions.
They were better equipped than the framers of the American consti-
tution by the variety of federal examples available to them, and by a
whole century's advance in political science. The Convention
numbered many constitutional students who had deeply interested
themselv^es in the subject — among whom may be specially mentioned
Sir Samuel Grrifiith of Queensland, Sir Henry Parkes and Mr. Barton
of Xew South Wales, Mr. Deakin and Mr. Wrixon of Victoria, Mr.
E. C. Baker and Mr. Kingston of South Australia, and Mr. Inglis
Clark of Tasmania. Mr. Baker had prepared a "Manual of Refer-
ence to Authorities " for the use of the Convention ; whilst Mr.
Clark had prepared an entire draft Constitution.

The deliberations of the Committee were private. The last stage
in the process of drafting was completed on board the S.S. Lucinda,
on the Hawkesbury River, from 27th to 29th March, by a sub-com-
mittee consisting of Sir Samuel Griffith, Mr. Kingston, Mr. Barton,
and Mr. Inglis Clark. On 31st March Sir Samuel Griffith, who had
been appointed Chairman of the Constitutional Committee, and who
had the chief hand in the actual drafting of the Bill, brought up the
Report of that Committee, together with a draft Bill to constitute the
Conimonwealth of Australia. The reports of the Finance and
Judiciary Committees were also appended.

The real work of the Convention was now practically finished ;
for although the subsequent discussion in Committee occupies nearly
half the printed volume of debates, not half a dozen substantial
amendments were made. Indeed, with the single exception that the
mode of distributing the surplus was readjusted, the Bill as it came
from the draftsmen was, with a few verbal and minor alterations,
adopted in its entirety. A good number of amendments were moved ;
but so well had the Constitutional Committee gauged the sense of the
Convention that these were nearly all defeated. Only 21 divisions
were taken in all ; and of these only three resulted in favour of a
modification.

THE FEDERAL MOVEMENT IX AUSTRALIA. 131

The framework of the Bill was on the lines which have since
become familiar by being adopted in all the subsequent stages of the
movement. It was cast in the shape of a Bill for submission to the
Imperial Parliament — the few clauses dealing with the establishment
of the Federation being placed first by themselves, and the Federal
Constitution itself following as a separate document. The Constitution
provided for the machinery of a complete central government, with a
federal legislature, executive, and judiciary. In the matter of nomen-
clature, the only novelty was the use of the word " Commonwealth,"
which was at first adopted provisionally for want of a better, but
which was so apt and descriptive, so simple and dignified, that it came
to stay. It is not too much to say that this grand old word, rich in
meaning and tradition, and intimately associated with the literature
and history of the English people, did more to arrest the public atten-
tion and kindle the public imagination than any other word in the
English language could have done. For a little while, indeed, it
jarred upon some ears with a slight revolutionary echo, owing to
association with Cromwell's Protectorate; but its older and deeper
meaning soon prevailed, and it stands to-day for the type and the ideal
of Australian nationhood. For the component members of the union,
the word "States" was preferred to either "provinces " or "colonies;"
and for the two Houses of the Federal Parliament the words "Senate''
and ''House of Representatives" — sanctioned by the usages of more
than one English-speaking community — were adopted.

The ^Lkis Compromises. — The serious " lions in the path " were
of course the differences of population, and the differences of fiscal
policy; and accordingly' the chief issues in the Convention were (1)
between large States and small States, and (2) between a high-tariff
policy and a low-tariff policy.

As regards the former question, the necessity of equal represen-
tation of States in the Senate was conceded from the outset, and Sir
Henry Parkes, in his preliminary resolutions, had voluntarily offered
it. This concession was made, however, subject to the definite and
unequivocal condition that the House of Representatives should have
the predominating voice in finance and in the control of the executive.
" I offered voluntarily, as far as I was individually concerned," he had
said (Convention Debates, 1891, p. 448), "an equal representation to
Western Australia as either Victoria or New South Wales would have
in the Senate. But I stipulated that that power which is held by the
House of Commons should be held by the House of Representatives —
that is in as effective a way as the words of a written resolution could
prescribe." But some of the colonies, not content with equal represen-
tation in the Senate, had claimed equal power for the Senate, and
rotmd these two standards the real battle of the Convention was
fought. The draft Bill embodied what was subsequently referred to
as the "compromise of 1891." The Senate was given equal power
with the House of Representatives, except that Appropriation Bills and
Taxation Bills were to originate in the House of Representatives
alone ; and that the Senate was forbidden to amend Taxation Bills or
Bills "appropriating the necessary supplies for the ordinary annual
services of the Government," or to amend any Bill " in such a manner

132 HISTORICAL INTRODUCTION.

as to increase any proposed charge or burden on the people." As
some compensation for these restrictions, the Senate was given, with
respect to Bills which it might not amend, a power to suggest amend-
ments. That is to say, the Senate might at any stage return any such
Bill to the House of Representatives " with a message requesting the
omission or amendment of any items or provisions therein." As a
furthef compensation, and as a guarantee to the Senate of some
measure of " veto in detail," Taxation Bills were to deal with taxation
only, and with only one kind of taxation; and no extraordinary
appropriations were to be tacked to the ordinary Appropriation Bill.
As regards the responsibility of the executive, Sir Henry Parkes'
original proposition requiring Ministers to sit in Parliament and to
hold office subject to their " possessing the confidence of the House of
Representatives, expressed by the support of the majority," was not
adopted ; but responsible government was indicated by the provisions
that there should be a "Federal Executive Council" to advise the
Governor-General, and that the chief heads of departments should
hold office during the Governor-General's pleasure, should be capable
of sitting in either House of Parliament, and should be members of
the Federal Executive Council. The intention was (to quote Sir
Samuel Griffith's words of a later date) " so to frame the Constitution
that responsible government may — not that it must — find a place in
it."

The compromise with regard to the tariff was of a different kind.
It was obviously out of the question for the Convention to frame a
tariff, or even to fix the principles on which the Federal Parliament
should frame a tariif. Yet the Yictorians were anxious for some
''guarantee" that their manufacturing interests should not be injured
by a sudden reversal of their protectionist policy ; whilst the freetrade
majority of New South Wales were equally afraid that their fiscal
faith would not be shared by the Federal Parliament. . Sir Henry
Parkes had always taken the high federal ground that the fiscal ques-
tion must be left unreservedly and unconditionally to the Australian
people to decide for themselves. He placed Federation above any
fiscal policy, and claimed that the other colonies should do the same.
Vested interests — whether they were the interests of manufacturers
or the interests of importers and consumers — must be entrusted on
both sides to the good faith of the Parliament and people whom they
were about to create. This settlement, which was the only one
possible, was embodied in the draft Bill. The Federal Parliament
was given full powers of raising money, not only by customs and
excise, but by every other mode of taxation; and the only conditions
imposed upon this power were that federal taxation must be uniform
in all the colonies, and that, on the adoption of a uniform tariff, trade
between the colonies should be free. Until the adoption of a federal
tariff, the provincial tariffs were to remain, not only as against the
outside world, but as between the States; and after that event the
power to impose customs and excise was to be vested exclusively in
the Federal Parliament, though the States were to retain concurrent
powers of raising money by every other mode of taxation.

Other Provisions. — For the rest, the Bill will be best described,

THE FEDERAL MOVEMENT IN AUSTRALIA. 133

not bj a complete summary of its provisions, but by reference to its
main points of difference from the Constitution as now enacted.

Federal Parliament. — The Senators were to be elected by the
Parliaments of the several States. The number from each State was
fixed at eight ; and equal representation was conceded, not only to
original States, but to all the existing colonies. In the House of
Representatives, each State was to have one member for every 30,000
of its people; but this quota was alterable by Parliament. Each State
was to have a minimum of four representatives. There was no ratio
fixed between the number of members of the two Houses ; the size of
the Senate depending upon the number of States, whilst the size of
the House of Representatives would depend upon the quota fixed by
the Constitution or by Parliament. Each State was to determine its
own electoral divisions, and was to elect its members upon its o^ti
provincial franchise. Plural voting was not prohibited, and the
Federal Parliament was not empowered to frame a uniform franchise.
There was no express provision for the settlement of deadlocks between
the two Houses.

The legislative powers of the Federal Parliament were substan-
tially the same as at present, with the following exceptions : — Astro-
nomical and meteorological observations, insurance, invalid and old
age pensions, conciliation and arbitration, and the acquisition of pro-
perty for public purposes, were not included. In the "banking"
sub-clause there was no exception of State banking. The river
question was only represented by a power to legislate as to "river
navigation with respect to the common purposes of two or more
States, or of the Commonwealth." There was no clause pro%nding for
the acquisition of State railways, or railway construction and exten-
sion ; but the power to make laws for the control of railways " with
respect to transport for the purposes of the Commonwealth " was not
limited, as it now is, to "naval and military purposes."

Federal Supreme Court. — The Federal Supreme Court was not
established by the Constitution itself, but was left to be established by
the Federal Parliament. The form of the judiciary clauses was some-
what different from what it is now ; but the only important difference
of substance was with regard to appeals. Not only was the Supreme
Court given a general jurisdiction to hear appeals from the Supreme
Courts of the States, but Parliament was empowered to abolish, in
part or in whole, the existing right of appeal from the State Courts
direct to the Privy Council. The judgment of the Supreme Court was
made final in all cases ; except that the Queen might, " in any case in
which the public interests of the Commonwealth, or of any State, or of
any other part of the Queen's dominions are concerned," grant leave
to appeal to the Privy Council.

Finance. — With regard to finance, the question which gave the
Committees the most trouble was the basis of apportionment of surplus
revenue among the States. It was recognized that the customs
revenue must be collected by the Commonwealth; but as it was decided
that the Commonwealth was not, at the outset, to be saddled with the
public debts of the States, it was soon seen that only a fraction of the
revenue would be needed for federal expenditure, whilst the States

13+ HISTORICAL INTRODUCTION.

would require much of it to meet their own expenditure. " The great
difficulty" (said Sir Samuel Griffith in introducing the Bill) — "'and it
IS a difficulty peculiar to this Constitution, so far as I have any know-
ledge— is that the customs revenue of the colonies in all cases forms a
very large share of the means of meeting the expenses of government;
and as we should take over only a very small part of the expenditure,
the Commonwealth would start with an enormous annual surplus of
many millions, which it could not retain or expend, but must return to
the different States. That is a difficulty almost as great as the difficulty
of making a levy upon the different States as States. It is a great
difficulty, but we have to face it, and the question is, what is to be
done ?" (Conv. Deb., Syd., 1891, p. 528.) Should revenue be credited
to the several States in proportion to their populations, or in propor-
tion to their contributions ? Should expenditure be charged against
the several States in proportion to their populations, or on the basis
of services rendered ? So far as revenue was concerned, the popula-
tion basis of adjustment seemed the most federal, but not the most
fair. Statistics showed that the consumption of dutiable articles
varied greatly in the different colonies, and it was anticipated that
even under a uniform tariff considerable differences might continue.
The contribution basis seemed fairer, but less federal; and it was
open to the objection that with intercolonial freedom of trade it would
be difficult to ascertain accurately what share of dutiable articles was
consumed in each State.

Here, at the outset, was the whole financial difficulty which was
afterwards to cause so much trouble. The recommendation of the
Finance Committee had been as follows : — " That after a uniform tariff
has come into operation, the surplus revenue may fairly be distributed
amongst the various colonies according to population; but as the
duties contributed by the various colonies are so unequal, it would be
unfair at the present time to distribute the surplus on this basis; it is,
therefore, recommended that the revenue from customs and excise be
devoted, first, to the payment of all expenditure authorized by the
Federal Grovernment, such expenditure to be charged to the several
colonies according to population ; the balance to be returned to the
colonies in such a way that the amount paid by each colony for such
federal expenditure, added to the amount returned, shall be, as nearly
as can be ascertained, the total amount contributed by each colony on
the dutiable articles consumed." (It seems that the resolution had
originally run "that some time after," &c.; but the words "some time"
were eventually omitted. See Conv. Deb., Syd., 1891, p. 814.)

In other words, the Committee recommended that the federal
expenditure, both before and after the uniform tariff, should be
charged against the colonies in proportion to population. The revenue,
however, was to be credited differently for the two periods. As long
as the provincial tariffs remained in force, each State was to get back
the amount of its contribution, subject to a deduction of its population
share of the federal expenditure. But as soon as the uniform tariff
came into force, and the border custom-houses disappeared, the
"contribution" basis was to be done away with, and population was
to be the basis for distributing revenue as well as for charging
expenditure.

THE FEDERAL MOVEMENT IN AUSTRALIA. 135

The Constitutional Committee, however, in framing the Bill,
departed altogether from these recommendations. They provided
that the federal revenue, both before and after the uniform tariff,
should be applied in the first instance to paying the federal expendi-
ture, and the surplus should be returned to the several States "in
proportion to the amount of revenue raised therein respectively,"
subject to certain provisions that taxes should be " taken to be
collected " in the State where the dutiable articles were consumed ;
or, in the case of direct taxation, where the taxable property was
situated. In other words, they cut the " population " basis out
altogether, and made "contribution" the basis, not only for distri-
buting the surplus, but also for charging expenditure — and after as
well as before the uniform tariff.

Trade and Commerce. — As to trade and commerce, the only pro-
visions explanatory of the federal power (in addition to the clause as
to " river navigation " already mentioned) were two short clauses ;
one, copied from the United States Constitution (Art. I., sec. ix., 5),
forbidding any preference to be given to the ports of one State over
those of another; and the other empowering the Federal Parliament
to annul State laws derosratinor from freedom of inter-state trade.
The questions of preferential railway rates, and of the possible conflict-
ing claims of river navigation and irrigation, were as yet only vaguely
recognized as difficulties, and no attempt was made to define the basis
of a settlement.

Federal Capital. — The federal capital was left to be determined
by the Federal Parliament ; and until such determination, the Parlia-
ment was to meet at such place as should be appointed by a majority
of the Grovernors — or, if they were equally divided, by the Governor-
General.

Amendment. — The mode prescribed for the amendment of the
Constitution introduced the American principle of ratification by
elected State Conventions — not, as now provided, by the electors
directly. Any law for amendment was first to be passed by an abso-
lute majority of both Federal Houses, and then submitted to Conven-
tions chosen in each State on the Parliamentary franchise; and if
approved by Conventions of a majority of the States, it was to become
law, subject to the Queen's power of disallowance.

Summary. — The foregoing sketch shows that in the first draft of
1891 the whole foundation and framework of the present Constitution
■was contained. Its general characteristics, as compared with the
Constitution as it now stands, may be summed up in a few words. In
the first place — as is natural in a first draft — it followed more closely,
in substance and in language, the literary models — American, Cana-
dian, and Australian — which were available to the Convention. In
the next place, it was in some few respects less essentially democratic
in its basis — a circumstance which is also natural, in view both of the
continuous development of democratic ideas, and of the more
completely popular impulse of the later stages of the federal move-
ment. And lastly, it was less definite and less elaborate in its treat-
ment of some of the vexed problems — problems which had not yet
been the subject of exhaustive discussion, and some of which had only

136 HISTORICAL INTRODUCTION.

been mooted in vague and general terms. The peculiarities of our
railway development, the unique characteristics of our river S3''stem,
the special difficulties arising out of our tariif policies and require-
ments, had not yet been adequately studied.

The constitutional problem of reconciling the representation of
State interests with British principles of legislation and finance — of
bringing into harmony the conflicting elements of State rights and
interests on the one hand, and of national rights and interests on the
other — in short, of securing responsible government, legislative finality,
and the general predominance of the House of Representatives, with-
out " killing Federalism," was as yet incompletely solved. All these
things were inevitable at the first attempt to grapple practically with
the question. But in spite of imperfections, the first draft stands as a
convincing monument of the wisdom, the statesmanlike ability, and
the patriotism of its f ramers. In those few days they laid down the
main lines from which the movement has never since wavered. On
2nd March, 1891, Australian Federation was a misty abstraction; on
31st March it had definite outlines and a practical policy.

Commonwealth Bill in Committee. — The Bill was brought up by
the Constitutional Committee on 31st March, and a short "second
reading " debate took place on Sir Samuel Griffith's motion to refer it
to Committee of the Whole. The Convention was anxious to get to
close quarters with the Bill, and the only members who followed Sir
Samuel Griffith in the general debate were Mr. Wrixon, Mr. Baker,
and Mr. Inglis Clark. Mr. Wrixon's speech was specially remarkable
for its almost prophetic insight into the modifications that would be
necessary before the Bill could be wholly acceptable; reading his
criticisms, it is hard to believe that they bear so early a date as 1891.

The motion to go into Committee was passed, and from 1st to 8th
April the Convention was occupied with the discussion of the clauses
of the Bill. The debates of those days are interesting, as being the
first discussion in public of the details of the proposed Constitution.
The amendments carried were few, and in most cases unimpoi'tant ;
but a good deal of light is thrown on the views of the Convention by
some of the proposals that were rejected — and also by the lack of
debate on some questions which afterwards assumed prominence.

The word "Commonwealth," though somewhat apologetically
supported, was retained on division by a large majority ; none of the
alternative suggestions — such as " Federated States," " Federation,"
"United Australia" — finding many friends. An amendment moved
by the veteran democrat, Sir George Grey, for the purpose of provid-
ing that the Governor-General should be elected by the Australian
people, was sympathetically received, but summarily dealt with ; and
a tentative amendment by Mr. Baker, to define in a schedule some of
the powers and functions pf the Governor-General, was withdrawn
after a short debate on the question of ministerial responsibility.

Election of Senators. — In place of the provision for the election
of Senators by the State Parliaments, Mr. Kingston proposed to leave
each State free to elect its own Senators in its own way. He argued
that uniformity was not attained by the clause as it stood, because the
various Upper Houses, which would share in the election, were not

THE FEDERAL MOVEMENT IN AUSTRALIA. 137

uniformly constituted. If uniformity were the all-important thing, he
would have preferred to prescribe direct election by the people in
large constituencies ; but the chief consideration was to satisfy the
several States. The proposal, however, was negatived by a large
majority. The Convention felt that a want of homogeneity in the
Senate would be undesirable ; and as the alternative system of uniform
election by the people did not as yet find enough favour to be worth
proposing, the American plan was adhered to.

Federal Franchise. — The franchise for the House of Representa-
tives was the subject of two unsuccessful amendments, for which the
hour was not yet ripe. Dr. Cockburn moved an amendment to forbid
property qualifications, and to give each elector a vote only for one
electorate — in other words, to embody the principles of manhood
suffrage and " one man one vote." And Mr. Barton moved an amend-
ment to allow the Parliament to prescribe a uniform federal franchise.
" It does seem to me," he said, " that if you are going to trust the
Parliament of the Commonwealth at all, you must trust it to fix its
own franchise." Both these amendments, though they received some
support, met with much opposition. The suggestion that either the
Federal Constitution or the Federal Parliament should meddle with
the franchise — though only for federal purposes — was criticized as an
invasion of State rights ; and though this argument was answered, it
prevailed. Mr. Gillies appealed to the Convention to " abandon these
fads," for which there was no practical necessity, and which would
throw difficulties in the way of Federation. Mr. Barton's amendment
was put first and negatived without di>asion; and Dr. Cockburn's was
then defeated on division by 28 votes to 9.

Trade and Commerce. — The clause defining the powers of the
Federal Parliament opened up several questions of which more was
afterwards to be heard. On the " trade and commerce " sub-clause,
Mr. Gordon — confessedly with an eye to South Australian interests in
the Broken Hill trade — asked whether the power to regulate trade
and commerce gave any authority to regulate railway rates on inter-
colonial lines. Mr. Clark argued that the American interpretation
showed that the clause implied considerable power of control; but Mr.
Gordon asked that the powers intended should be definitely given,
and announced his intention of framing a sub-clause for the purpose.
Sir Samuel Griffith feared there was no middle course between grivingr
the Commonwealth complete " control of railway tariffs," and leaving
the States to do as they liked; and said that the only federal control
which the Constitutional Committee had seen fit to recommend was
contained in the clause empowering the Federal Parliament to annul
State laws " having the effect of derogating from freedom of trade or
commerce" between the States. Mr. Donaldson sugrorested that the
real solution both of the "differential rates" problem and of the
" distribution of surplus " problem was to federate the debts and rail-
ways. The discussion was merely a preliminary one, and no amend-
ment was proposed in the sub-clause ; but shortly afterwards Mr.
Gordon proposed a new sub-clause giving the Federal Parliament
power to regulate railway traffic and traffic charges where required
*' for freedom of trade and commerce, and to prevent any undue

138 HISTORICAL INTRODUCTION.

preference to any particular locality within the Commonwealth, or to
any description of traffic.'^ These words were criticized as being much
too wide, and as giving the Federal Parliament excessive powers of
interfering with State railway management. It was argued that so
lono- as the States retained the financial responsibility over the rail-
ways, they must retain full control except so far as their action might
interfere with the federal principle. Mr. Deakin pointed out that
rates which " derogated from freedom of trade " were already pro-
hibited ; and Mr. McMillan argued that differential rates which did
not so derogate might be perfectly legitimate. There was a general
agreement that some kinds of differential rates should be prohibited,
but no satisfactory clause could be suggested ; so Mr. Gordon's
amendment was negatived. A similar fate befell a clause proposed by
Mr. Clark to prevent " discriminating rates " which gave a preference
to any locality, or any description of traffic ; and the " trade and com-
merce " power was left unexplained, save for the " derogation " clause.
Rivers. — The river question also raised some debate. The Finance
and Trade Committee — foreseeing that federal control might be needed
for other purposes than navigation — had recommended a federal legis-
lative power as to " Intercolonial rivers and the navigation thereof;"
but the Constitutional Committee had cut this power down to " River
navigation with respect to the common purposes of two or more
States." Mr. McMillan argued that federal powers with regard to
the use of the water for irrigation and conservation should be added ;
and accordingly Sir Samuel Griffith moved tentatively to insert the
words " and conservation of water." This was objected to as affecting
property and riparian rights ; though on the other hand it was argued
tsy Mr. Deakin that powers of conservation for the purpose of main-
taining and improving navigability were conferred by the clause as it
stood. Discussion showed that the question was too difficult to be
dealt with off-hand, and the amendment was withdrawn.

Powers of Senate. — The chief debate, however, was on the vexed
question of the powers of the Senate. When the clause embodying
the Committee's compromise on this matter was reached, Mr. Baker at
once raised the whole question by submitting an amendment for the
purpose of giving the Senate absolutely co-equal powers with the
House of Representatives. Dr. Cockburn supported him, on the broad
ground that " the principle of Federation " required, not merely equal
representation in the Senate, but the equal power of both Houses ;
and that centralization was incompatible with, and State-rights were
essential to, a real democracy. This doctrine was upheld, more or
less, by most of the representatives of the small States ; whilst, apart
altogether from the question of State-rights, the principle of a strong
Upper House was favoured by the more Conservative representatives,
not only of the small States, but of New South Wales as well. Both
these aspects were vigorously combated by the solid phalanx of
Victorian representatives, by Sir Henry Parkes and others for New
South Wales, and by Mr. Playford for South Australia. Mr. Deakin
denounced the combination of " reactionary radicals and iconoclastic
conservatives " who would place an absolute veto in the path of the
people. Mr. Munro warned the Convention that the clause as it stood

THE FEDERAL MOVEMENT IN AUSTRALIA. 139

was the utmost limit of compromise which Victoi-ia would accept.
Adherence to the compromise reached was urged bj Sir Samuel
Griffith for Queensland, by Mr. Bird for Tasmania, by Mr. Playford
and Mr. Kingston for South Australia, by Mr. Hackett for Western
Australia. From large States and small States alike came the appeal
"keep to the compromise;" and the amendment was defeated on
division by 22 votes to 16. Mr. McMillan then moved an amendment
with the object of giving the Senate full power to amend, in the first
instance, all Bills except Appropriation Bills ; but forbidding it to
amend Taxation Bills a second time. This also was rejected.

Mr. Wrixon, however, feared that even the power of suggestion
might lead to deadlocks ; and to guard against this he put forward
an embryo " deadlock provision," to the effect that if a " suggestion "
of the Senate were declined by the House of Representatives, the
Senate might request a joint meeting of the two Houses, at which a
majority should decide. It should be noticed that this proposition
was fundamentally different from the joint sitting as now embodied in
the Constitution. It was only available to deal with suggestions by
the Senate — the precise subject which a joint sitting is now forbidden
to consider. The suggestion failed to find favour with the friends of
either House. It was criticized as dangerous and " mechanical," and
was negatived with little debate.

Besponsible Government. — With regard to the Executive Govern-
ment, the only debate of importance arose on the question of the best
words in which to suggest the responsibility of Ministers. The Bill
as drafted provided that the chief departmental heads should be
members of the Federal Executive Council ; to which Mr. Wrixon
proposed to add, " and responsible Ministers of the Crown," The
word " responsible," however, was criticized as being of uncertain
meaning; and on Sir Samuel Griffith's suggestion the phrase " the
Queen's Ministers of State for the Commonwealth " was adopted.

Finance. — The finance clauses gave rise, not only to an important
debate, but to some important alterations. The " contribution " basis
of apportioning expenditure and revenue came in for severe criticism,
and the members of the Finance Committee wanted an explanation of
the reasons why their recommendation had been departed from. So
far as expenditure was concerned, no satisfactory explanation was
forthcoming, except that Sir Samuel Griffith and some others seemed
to think there would be some inconsistency in charging expenditure
against the several States on a different basis from that on which
revenue was credited. This idea, however, was demolished by Sir
Thomas Mcllwraith, on whose motion an amendment was carried pro-
viding that federal expenditure, from the outset, should be borne by
the several States in proportion to population. The apportionment of
revenue caused more difficulty. Sir John Bray objected to the " con-
tribution " basis, as requiring an account to be kept of the ultimate
destination of dutiable goods, and argued that as soon as a federal
tariff was adopted, revenue ought to be credited on the basis of popu-
lation. " We ought to assume " he said " that any uniform customs
tariff that bears fairly on the inhabitants of Australia will result in the
inhabitants of each colony paying the same per head pro rata as the

140 HISTORICAL INTRODUCTION.

inhabitants of Australia generally pay." Sir Thomas Mcllwraith and
Sir Samuel Griffith were prepared to admit that there might ultimately
be an approximation to equality, but argued that for many years to
come there would be inequality of contribution, and that meanwhile
the population basis would be unfair. Mr. McMillan agreed that
there would be some inequality of incidence, but was inclined never-
theless to favour the population basis as being the most federal.
However, he suggested a compromise ; to leave the contribution basis
in force, after the adoption of a federal tariff, until the Federal
Parliament should decide to alter it. This suggestion found favour
and was adopted. The Convention recognized that the Federal
Parliament, with experience of the working of a federal tariff, would
have a solid foundation to build upon, which was lacking to the Con-
vention. Some figures had indeed been prepared by the statisticians
as an estimate of what each colony would contribute under different
tariffs — the Victorian tariff being taken as the basis of one estimate,
and an " imaginary tariff " of fixed duties on narcotics and stimulants,
with an all round ad valorem duty of 13 per cent, on other imports, as
the basis of another. These figures had been before the Finance Com-
mittee, but were not printed with its report ; and they were the cause
of some skirmishing in the Convention, being alluded to by their
friends as the " suppressed tables " and by their critics as " imaginary
tariffs." In fact the battle of statistical forecasts, which was after-
wards to be the fiercest fight of all, had its small beginnings in this
debate.

But though the problem of the distribution of the federal surplus,
had been thus dealt with, the Convention was awake to the difficulties
and dangers which might arise from the fact that the revenues con-
trolled by the federal government would be immensely greater than
the liabilities imposed upon it. Some need was felt of a " guarantee "
that this surplus revenue would not be wastefully expended, but would
be applied to the necessary purposes of the State Governments. Any
such guarantee must be based on one of two principles — either an
obligation on the Commonwealth to return some part of its revenue ta
the States, or an obligation to take over some of the liabilities of the
States. The former plan was not mooted at all in 1891 ; but the
latter one came up in the shape of a proposal by Sir John Bray to
make the Commonwealth liable for the existing public debts of the
States — each State being in turn liable for the amount (if any) by
which its debt exceeded a fixed sum per head of its population.
There was a disposition on the part of the Convention, however, to
think that this was going too far. Some of the delegates thought that
the debts ought not to be handed over without the " assets " which
they represented ; and though Mr. Bird pointed out that the federal
revenue powers were a sufficient asset, the argument that the debts
ought not to be separated from the reproductive works in which they
were sunk carried great weight. But over and above this, the pro-
posal was unpalatable to New South Wales for a reason which was
only hinted at, but which probably was the deciding factor. To saddle
the Commonwealth with the interest on the public debts would
practically have meant imposing on the Federal Parliament the duty

THE FEDERAL MOVEMENT IN AUSTRALIA. 141

of raising a large amount through the Customs, and would have placed
the freetrade party at a disadvantage in federal politics. It was seen
that the amendment touched on dangerous ground, and it was accord-
ingly negatived without division.

State Governors. — The clauses relating to the Governors of States
gave some trouble, and showed a marked difference of opinion. The
clause providing that communications between the State Governors
and the Queen should be made through the Governor-General was on
the one hand approved as a necessary consequence of the unity of
Australia as regards the outside world ; it was objected to on the
other hand as a wanton interference with matters of purely State con-
cern. On division, the clause was carried by a small majority. The
clause providing that " in each State of the Commonwealth there
shall be a Governor " was criticized as an unnecessarv and inadvisable
dictation to the States. Sir Samuel Griffith had no definite apology
for the clause, except the somewhat unsatisfactory suggestion that it
indicated that the States were sovereign ; however, it was retained.
Finally, the clause giving the Parliament of each State power to
determine the mode of appointment of its Governor, and his tenure of
office, was objected to as another unnecessary interference ^vath the
State Constitutions, and supported on the other hand as being merely
the gift of a discretionary power. On division, the clause was carried
by a majority of one.

Amendment. — In the clause dealing with the amendment of the
Constitution, several members pointed out that the provision for
ratification by " Conventions of a majority of the States " gave a
second veto to the States, but none to the people as a whole. Sir
Samuel Griffith admitted the force of the argument, and proposed to
add a requirement that the people of the affirming States must contain
a majority of the people of the Commonwealth. Mr. Playford pointed
out that this was a clumsy contrivance, and that the whole difficulty
arose from the false principle of taking the voice of the people in-
directly through Conventions instead of directly at the polls. He
advocated the Swiss plan of a referendum, requiring the assent of a
majority of the people, and separate majorities in more than half the
States. This view was supported by Dr. Cockburn and Mr. Deakin ;
but an amendment to that effect moved by Dr. Cockburn was defeated
by a large majority, and Sir Samuel Griffith's suggestion was adopted.

The Committee stage ended with Mr. Dibbs' "bomb-shell" — an
amendment providing that the site of the federal capital, instead of
being left for the Federal Parliament to determine, should be fixed at
Sydney. This was promptly rejected by 26 votes to 4 — Mr. Dibbs
alone, of the New South Wales deleofation, voting" for it : and the Bill
was reported with amendments.

Adoption of the Bill. — A short debate then followed on a motion
by Sir Samuel Griffith that the Bill as reported from the Committee
be adopted by the Convention. The debate showed that, on the
whole, the Convention were satisfied with their work. Sir Henry
Parkes thought it " a wise, temperate, and successful compromise,'*
and ventured upon the prophecy that all the colonies would accept it.
At the same time, he warned his hearers of the opposition to be ex-

142 HISTORICAL INTRODUCTION^.

pected from opponents of Federation outside the Convention. "We
may be sure/^ he said, "that the Bill will meet with perhaps virulent
opposition. We know with what violence of feeling, with what
violence of expression, every great work at every period of history has
been assailed by those who were opposed to it, and still more by those
who assailed it for no reason at all, and under no guidance that could
be intelligible," He reminded them that already they had been
accused of "giving away the liberties of New South Wales," of
" giving the lands," of " giving up the control of the inland rivers ; "
and similar accusations would probably be made against the repre-
sentatives of the other colonies. But in spite of the " anathemas
hurled at us by certain people out of doors," and based either upon
ignorance or upon wilful misrepresentation, he expressed his firm
belief that the Bill would be ratified. And even assuming the con-
trary— assuming that the day of Federation had not yet come — " it
cannot," he said, " be far off ; and whenever the time comes, this
admirably-drawn Bill, so clear, so instinct with a spirit of well-
ordered liberty, so instinct with a true appreciation of stable and
sober laws, so pervaded by the very spirit of toleration and
mutual consideration — come whenever that time may, this Bill must
be in the foundation of the edifice of federal liberty. It can never be
forgotten, it can never be depreciated, it can never be made less than
it is to-day ; and supposing another Constitution should be framed by
other men, to a very large extent the provisions of this Bill must be
embodied in that Constitution, so that this Convention has breathed
into this Bill the breath of an immortal life." Other delegates spoke
more critically, but no less hopefully. Mr. Baker and Dr. Cockburn,
from the small State point of view, regarded the Bill less cheerfully.
Sir John Downer feared that the powers of the Senate were defined
in words which were designedly ambiguous, and would lead to discord.
Sir George Grey lamented that plural voting was not abolished. But
doubts and fears were over-borne by the general chorus of satisfaction.
Nearly every member was prepared, on the whole, to accept the Bill
as it stood, as a good Constitution and a fair compromise ; and it was
adopted by the Convention Avithout division.

Thk Mode of Submission. — The draft Constitution having been
passed, the next thing to consider was what steps should be taken to
secure its acceptance by the several colonies. Sir George Grey had
already, immediately the Committee stage was over, moved a resolution
that it should be " submitted to and adopted by a majority of a
plebiscite of the people of Australia." This had been objected to as
inconsistent with the idea of a voluntary acceptance by each individual
colony, and Sir George had accepted an amendment providing for a
plebiscite in each separate colony ; but the motion as amended was
rejected. As soon as the Convention had adopted the Constitution,
Sir Samuel Griffith moved " That this Convention recommends that
provision be made by the Parliaments of the several colonies for sub-
mitting for the approval of the people of the colonies respectively the
Constitution of the Commonwealth of Australia as passed by this
Convention." He argued — and the Convention as a whole agreed
with him — that it was not for them to dictate to the colonies the

THE FEDERAL I^tOVEMENT IN AUSTRATJA. Uu

manner in which they should accept the Constitution ; all they could
do was to refer that question to the several Parliaments. The ques-
tion arose, however, whether the Constitution ought to be submitted
to some ratifying body to accept or reject as a whole, or whether
opportunity ought to be allowed for further reconsideration of its pro-
visions. Most of the members were very averse to any re-opening of
the decisions arrived at by the Convention. The work of the Con-
vention had involved compromise and concession, and they feared
that to allow each colony to pick it to pieces in its own interests, and
undo all that had been done, would lead to endless confusion and
delay. A few voices, however, were raised to urge them to "hasten
slowly." Sir John Bray suggested consideration in detail by the
Parliaments, and a second Convention, if necessary, to harmonize
differences. To prevent the colonies from thinking that the Bill was
being "crammed down their throats" he moved to substitute "con-
sideration " for " approval." Mr. AYrixon supported the amendment,
arguing that " this subject comes down on the people from above,"
and that a few years' delay was nothing compared with the importance
of thorough consideration. The amendment, however, only secured,
seven supporters, and Sir Samuel Griffith's resolution was carried.
It was followed by a further resolution recommending that as soon as
the Constitution were adopted by three colonies, the Home Government
should be requested to take steps to establish it in respect of those
colonies. After some complimentary resolutions. Sir Henry Parkes,
on 9th April, 1891, declared the Convention dissolved.

(8) THE FATE OF THE COMMONWEALTH BILL OF 1891.

Reception of the Bill. — The framing of the Commonwealth Bill
marked a notable advance in the movement. In place of vague
abstractions, federationists had now a definite rallying ground, anti-
federationists a definite line of attack. Advocacy and criticism
became at once more direct, more circumstantial, more practical. The
text of the Bill itself obtained a wide circulation, and was studied
and preached upon by politicians of every class and type, by the
metropolitan and provincial press, by debating societies, and political
associations. An annotated edition, in pamphlet form, by Mr. G. B.
Barton, was issued from the Government Printing Office of New
South Wales: and the idea of Federation besran to assume a definite
shape in the minds of the people as a whole. Federation had long
been in the air ; it now came down to the earth. It had long been
dreamed of, and sung of, as a destiny one day to be realized ; it now
could be examined and analyzed as a practical political scheme.

There can be no doubt that many members of the Convention
had hoped that the work of construction was complete, and that the
Bill as it stood might be adopted without delay as the Federal Consti-
tution of Australia. But they were doomed to disappointment. It
soon became clear that neither the Parliaments nor the people would
accept the work of the Convention as final. The Parliaments, natur-

144 HISTORICAL INTRODUCTION.

ally enough, resented the idea that a constitutional change of such
vast importance should be effected without their having any voice in
the details of the scheme. And in the minds of many of the people
there was a vague feeling of distrust of the Constitution, as the work
of a body somewhat conservative in composition, only indirectly repre-
sentative of the people, and entrusted with no very definite or detailed
mandate even by the Parliaments which created it. The consequence
was that while the Bill received unstinted praise in some quarters, it
was subjected to unsparing criticism in others.

One circumstance in particular swelled the chorus of discontent,
especially in New South Wales — the colony which was thenceforth to
be the main battle-field of the movement. The "new democracy"
was just then trying its wings. In 1891 the Labour Party made its
first appearance in the Parliament of New South Wales, with great
zeal for reform, with constitutional theories of its own, but with scanty
political experience. To this party and its constituents the draft Con-
stitution seemed to bristle with imaginary dangers. It conferred
" enormous powers " on the Governor-Greneral ; it was steeped in
" Imperialism ; " it meant the crushing of the workers by a " military
despotism." These unreal terrors had much to do with the want of
enthusiasm for Federation displayed at that stage by the Labour
Party and its adherents.

Of course, however, there were other and less flimsy grounds of
opposition. The Constitution was a compromise, with the faults as
well as the merits of a compromise; the federal principles it contained
were new to Australia, and their application to neAv circumstances
gave room for much difference of opinion. In the large colonies, the
composition and powers of the Senate were especially criticized.
Equal representation, the poAver to suggest amendments in money
bills, the absence of any provision for solving deadlocks, were in turn
condemned and defended. The inadequacy of the financial provisions
— the possibility that, under the trade and commerce power, trade
might be unfairly diverted from one colony to another — the risk that
the federal tariff might be too protective, or not protective enough —
these and many other questions of constitutional principle and pro-
vincial interest were raised and debated.

Delay in New South Wales. — New South Wales was expected
to take the lead in dealing with the Bill; and when Parliament
opened on 19th May, the Governor's speech announced that no time
would be lost in submitting a resolution for that purpose. On the
same day Sir Henry Parkes gave notice of the following resolutions: —

" That this House reaffirms its opinion in favour of the Federation
of the Australian colonies, and taking into consideration all the cir-
cumstances of the constitution of the National Convention which met
in Sydney in March last, as a duly authorized body appointed by all
the Parliaments of Australia, and having due regard for the diflEiculties
and the necessity for compromise in reconciling conflicting interests
and coming to a common ground of agreement, it hereby approves of
the scheme for an adequate Federal Constitution embodied in the
draft Bill of the Convention. But it reserves to itself the right to
propose amendments, to be fully set forth by the proposer in each case

THE FEDERAL MOVEMENT IN AUSTRALIA. 145

in a schedule, and to be fully considered, if deemed advisable, by
another Convention similarly constituted, and in like manner repre-
senting all the colonies.

" 2. That this House is further of opinion that the question, as
dealt with by this Parliament, should be submitted to the people in
their electoral capacity for final approval."

The somewhat elaborate and argumentative form of these resolu-
tions, and the haste to give notice of them before the debate on the
Address in Eeply, were strategic devices to answer in advance the
expected attack. The attack came from Mr. G. H. Reid, who moved
an amendment on the address, to the effect that the House recognized
the distinguished ability and zealous labours of the Convention, and
was desirous of federal union "on principles just to the several
colonies," but affirmed that the Bill was not just "in some important
respects, two of which we desire to indicate, namely : — (1) The powers
over revenue, taxation, and expenditure conferred on the proposed
Senate ; (2) the rejection by the Convention, and the omission from
the Bill, of responsible government as a necessary part of the Consti-
tution." The amendment also complained that the federal power of
legislative interference with the general commercial management of
the railway and river systems, without any provision for assuming
obligations in respect of them, was not founded upon just principles.
In the course of his speech, Mr. Reid laid great stress on the danger
to which the freetrade policy of New South Wales would be exposed
by Federation. He compared New South Wales to a teetotaler who
contemplated keeping house with five drunkards. " I will not put my
principle of freetrade," he said, " in the power of the Victorian pro-
tectionists." He resented any attempt to " cram this Bill down the
throats of Parliament," but at the same time expressed himself ready
to accept the right kind of Bill. The amendment was negatived on
division by a substantial majority.

Sir Henry Parkes, however, was not destined to move the reso-
lutions of which he had griven notice. The House was within eight
months of expiry by effluxion of time, and the Ministry were anxious,
for obvious political reasons, not to neglect "urgent local legislation"
for the sake of what their opponents termed the "fad" of Federa-
tion. Then came a motion of censure, resulting in an equal division ;
and on 6th June the Assembly was dissolved.

The new Parliament met in July, with the new element — the
Labour Party — some 30 strong in a House of 141. The new party
cared little for Federation, and less for the Convention Bill ; they were
elected to secure "urgent provincial legislation" in the interests of
their fellow-workers. They supported the Government; and the
Government on its part consented to place Federation third on the
programme — where it remained until the defeat and resignation of the
Ministry in October. Some weeks previously to this event, a debate
had occurred which throws some light on the attitude of the New
South Wales Assembly at that time towards Federation. Mr. Henry
Copeland, on 1 st September, moved a resolution in favour of a pro-
tective tariff. Mr. Barton moved an amendment to the effect that
inasmuch as the anticipated federal union would bring about a common

146 HISTORICAL INTRODUCTION.

fiscal policy for all Australia, and as meanwhile the co-operation of all
parties was necessary in securing urgent legislation, "the financial
requirements of the colony, rather than the rigid doctrines of any
system of political economy, should regulate the mode of raising
any further revenue through the Customs." During the debate, the
labour party reiterated their demand for "useful legislation," and did
not commit themselves to any particular federal views ; though they
would support Federation on their own lines. Mr. Reid expressed
himself confident that Federation would not come soon, " because
the position taken by several of the smaller colonies, on certain
points, is so firm, that the inevitable amendments that will be effected
in this House, and which have already to some extent been effected in
Victoria, will put off any agreement on the subject for a long time to
come." Though there was actually a majority of protectionists in
the House, the direct protectionist vote could not be carried. Sincere
Federalists on both sides of the House were prepared to forego the
fiscal fight for the sake of Federation ; the greater part of the labour
party were prepared to do the same for the sake of social legislation;
so that the two new issues of Federation and Labour combined, for the
time being, to keep the fiscal issue in check. In the end, Mr. Barton's
amendment to the resolution was carried, and the resolution as
amended was then defeated.

Victoria. — Meanwhile the Parliaments of Victoria, South Aus-
tralia, and Tasmania had attempted to make some progress with the
discussion of the Commonwealth Bill. On 30th June, Mr. Munro, in
the Victorian Assembly, moved a resolution "That this House
approves generally of " the Bill ; it being understood that there would
be an opportunity afterwards for consideration in detail. The general
debate extended over eight sitting days, and showed the House on the
whole to be distinctly favourable, though there was a determined
section of critics led by Sir Bryan O'Loghlen, who were for insisting
on the principle of " one man one vote " as a condition precedent, and
complained bitterly of the excessive powers of the Senate. The manu-
facturing interests had long been eager for Federation, for the sake of
wider markets, and were prepared to take their chance with the com-
petition of the other colonies ; but the farming and agricultural
interests, though not anti-federal, were always fighting for more pro-
tection against intercolonial produce, and especially for an increase of
the stock-tax. The resolution having been carried, the discussion in
Committee began on 21st July, and lasted until 27th August, extend-
ing over nine sitting days. Many amendments were proposed — mostly
by Sir Bryan O'Loghlen — but few were carried. The most notable
amendment made was the striking out of the Senate's power to
suggest amendments in money bills ; a proceeding Avhich was partly
a protest against the claims of the Victorian Upper House. The right
of the Lower House to sole financial control had long been a promi-
nent article of liberal faith in Victoria ; for curiously enough that
colony — the only one in which the Constitution expressly forbids the
Legislative Council to amend Appropriation or Tax Bills — has seen the
most serious " deadlocks " that have occurred in Australia. Another
instructive feature of the debate was the strong opposition shown, by

THE FEDERAL MOVE^[ENT IN AUSTRALIA. 147

the representatives of Victorian farming interests, to the admission of
Xew Zealand within the magic circle of the Commonwealth. An
amendment to substitute " Australian " for " Australasian," and
another to omit "New Zealand" from the number of States entitled
to adopt the Constitution, were narrowly defeated ; but later on an
amendment was carried to except New Zealand from the colonies
which might be subsequently admitted as " New States."

In the Legislative Council of Victoria, the general resolution was
moved by Mr. Cuthbert on 8th July, and carried after a three nights'
debate. The Council then waited for the Assembly, and between 29th
September and 21st October, with only four sittings, it dealt with the
Bill and with the Assembly's amendments. It restored the power of
suggestion, which the Assembly had struck out ; and it forwarded to
the Assembly a message which was never considered.

South Australia. — The South Australian Assembly began the
consideration of the Bill simultaneously with the Victorian Assembly.
Mr. Playford, on 30th June, moved a resolution approving generally
of the Bill, and of a second Convention, if necessary. While New
South Wales remained passive, there was no hurry, and the debate
proceeded slowly. The six nights which it occupied were spread out
over nearly three months ; and a fragmentary consideration in Com-
mittee, begun on 29th September, was not quite finished when the
Assembly prorogued on 19th December. The two chief amendments
made were for the election of Senators by the people, and for the
submission of constitutional amendments to a referendum in each
colony, instead of to a Convention.

In the Legislative Council the debate was even more leisurely.
The resolution was moved by Mr. AY. Copley on 7th July, debated on
nine evenings, and carried on 8th September, The following week its
consideration in Committee got as far as the omission of the word
"Commonwealth" — for which, however, no substitute could be agreed
on. Then the Council decided to wait for the Assembly — with the
result that nothing more was done that session. Next year, however,
the discussion was resumed, in a somewhat perfunctory way, and in
December, 1892, the Bill was reported with amendments.

Tasmania. — Tasmania, too, made some effort to deal with the
question, but on rather different lines. There it was proposed to ask
the Houses to consider the Bill first, and then to remit it to the con-
sideration of a provincial Convention elected by the voters of Tas-
mania. Accordingly in July a "Commonwealth of Australia Bill " was
introduced by the Attorney-General (Mr. A. Inglis Clark) providing
for 50 representatives being elected, upon the House of Assembly
rolls, to consider the Bill. The draft Constitution was also considered
by the House in Committee, and the amendments made were attached
to Mr. Clark's Bill, which was passed and sent to the Council. It
there reached its second reading, but after several adjournments it
was ultimately shelved, on the ground that Tasmania's part in the
matter was to follow, not to lead.

New South Wales. — The Parliaments of three colonies had thus
found time to deal partially, if somewhat perfunctorily, with the
matter; but neither Queensland, Western Australia, nor New Zealand

148 HISTORICAL INTRODUCTION.

had taken any steps at all. The two latter colonies took little interest
in the matter ; and indeed in New Zealand an abstract motion by Sir
George Grey on the subject of Federation, but having no direct
reference to the Convention Bill, was unceremoniously counted out. In
Queensland, however, the Chief Secretary, Sir Samuel Griffith,
announced his readiness, and that of his colony, to follow the lead of
New South Wales. All Australia, in fact, was waiting for New
South Wales ; and we must now direct our attention once more to the
course of events in that colony.

The retirement from office, in October, 1891, of Sir Henry Parkes,
the recognized leader of the movement, left but a slender prospect of
immediate action being taken by the New South Wales Parliament.
Mr. Eeid, and a large section of the freetraders, put freetrade before
Federation ; the labour party put social questions before Federation.
Mr. G. R. Dibbs, the new Premier, was no friend of the Common-
wealth Bill ; nor were most of his colleagues. Mr. Barton, however,
who Avas already recognized as Sir Henry Parkes' federal lieutenant —
though in provincial party politics they Avere on opposite sides —
accepted the Attorney-Generalship in the new Ministry, on the
understanding that he was to have a free hand in dealing with
Federation. Mr. R. E. O'Connor, also an earnest federalist, took the
portfolio of Minister of Justice, with a seat in the Upper House. Mr.
Barton, at the general election and also at his re-election as Minister,
laid down his federal programme clearly, on the following lines : —
(1) The draft Constitution to be fully debated ; (2) Parliament to
specify its amendments ; (3) the Bill and desired amendments to be
laid before a second Convention ; (4) the Bill as amended by the
second Convention to be submitted to each Parliament ; and (5) to be
finally submitted to the people, each man to have only one vote.

But Mr. Barton had a difficult task. He was surrounded by
unsympathetic colleagues in an unsympathetic House. The Parlia-
ment was interested in " urgent local legislation " — notably the tariff
and the Electoral Bill — and was not keenly interested in Federation.
Though the general feeling of the community was supposed to be
federal, no active political pressure was as yet being brought to bear
on members by their constituencies. On 21st December Mr. Andrew
Kelly, a labour member, moved a resolution in the Assembly ''That
no system for the federation of the colonies will be acceptable to this
House until the electoral system provides for the principle of one man
one vote at the election for members of the House of Representatives."
After half an hour's debate, in a thin House, this was carried.

Early in 1892 Sir Henry Parkes wrote a letter to Mr. Dibbs,
informing him that he would propose an entirely new course for deal-
ing with Federation, " founded upon the proceedings of the thirteen
original States of the American union." He seems to have lost faith in
the possibility of carrying Federation through by Parliamentary action
alone; and accordingly, in March, 1892, he moved the adjournment
of the House to discuss " the movement in favour of Federation, and
the most expedient course to be pursued in bringing it to a successful
conclusion." He reviewed the movement, complained bitterly of the
tactics of opponents, dealt with the causes of delay, and affirmed that

THE FEDERAL MOVE:NrENT IN AUSTRALIA. 149

Parliament was a very unfit body to deal with the question, because it
was elected for other purposes. Finally he unfolded his new plan : —

" Now, if my contention be at all sustainable, that Parliament is
not elected to deal with this question, but that on the contrary it
ought to be elected to deal with quite different questions, we are
driven to enquire what steps should be taken ; and though we may be
excused from our inexperience in not adopting this step at an earlier
stage, still it seems to me to be the only step that can be taken, if we
are in earnest in desiring to bring this great question of the union of
the colonies to a successful issue — that is, for the people themselves,
the electors who sent us into this Assembly, the electors themselves
throughout the colonies, to elect another Convention to revise the
draft Constitution of the late Convention, and to frame a new Bill, if
in their wisdom they think proper to do so."

Mr. Barton, however, favoured adhering to the lines already laid
down of Parliamentary discussion and a second Parliamentary Conven-
tion. Shortly afterwards, on 23rd November — notwithstanding pro-
tests from those whose chief desire was "urgent legislation" — he
introduced the federal resolutions, re-affirming the principle of
Federation, approving the main principles of the Commonwealth Bill,
and expressing the opinion that the Bill should be dealt with in Com-
mittee, and the amendments of the several Parliaments remitted to a
second Convention, similarly appointed and reporting to the Parlia-
ments, and that the question of final adoption should be submitted to
the electors.

The debate which followed was somewhat languid. Mr. J. H.
Want moved an amendment, limiting the resolutions to an affirmance
of the principle of Federation, and the desirability of discussing the
Bill in Committee. Mr. Reid announced that he now took a more
sanguine view of the prospects of Federation ; and that the general
movement, in Australia and elsewhere, in favour of freetrade, encour-
aged " a more rational and better idea that my principles will not be
sacrificed." His objections to the Commonwealth Bill, however,
remained as strong as ever. The debate was interrupted by a motion
of censure, but was resumed on 11th January, 1893. Mr. Kelly again
moved his amendment that no Federation would be acceptable that
did not provide for "one man one vote ;" but the absurdity of dictat-
ing conditions was pointed out, and the amendment was negatived.
An attempt was made to shelve the question, on the two grounds of
"urgent legislation" and the wickedness of the Bill; but this also
failed, and the resolutions were carried. Circumstances again con-
spired to delay the consideration in Committee, but this was promised
for the following session.

In the Legislative Council, after several postponements, Mr. R.
E. O'Connor on 17th May moved the same resolutions. His speech
was noteworthy for a suggestion in regard to " deadlocks " — that if a
Bill granting supplies were thrown out by the Senate in one session,
and the disagreement continued in the next session, the two Houses
should sit together, and some specified majority of the joint sitting
should decide the matter finally. The resolutions were carried, but,
the end of the session being near, the consideration of the Bill in
Committee had to stand over.

150 HISTORICAL INTRODUCTION

In September Parliament Avas again convened, and on 12th
October Mr. Barton moved that the House go into Committee to con-
sider the Bill. Mr. Arthur Rae, a labour member, moved an amend-
ment to the effect that Federation would " do nothing to meet those
social and industrial problems so urgently pressing for solution," and
that the draft Constitution was " of too rigid a character to suit the
progressive spirit of Australian democracy, and should not be pro-
ceeded with without a special mandate from the people of New South
Wales." Sir Henry Parkes moved the adjournment of the debate,
and it was never again reached. In the Council the first few clauses
were actually discussed in Committee during November and December,
but in a very desultory way ; and little progress had been made when
a prorogation intervened. A few days later both Mr. Barton and Mr.
O'Connor resigned their portfolios, owing to a resolution passed in the
Assembly criticizing their action in accepting briefs against the
Railway Commissioners ; and all hope of Parliamentary action was for
the time at an end. In short, the Parliamentary process of dealing
with the Commonwealth Bill had broken down hopelessly.

(9) THE POPULAR MOVEMENT.

G-ROWTH OP Federal Sentiment. — Sir John Robertson's boast that
" Federation is as dead as Julius Csesar," was coming to be a favourite
saying of anti-federalists ; but as a matter of fact the fedei^al spirit
was only just beginning to awaken. The Commonwealth Bill, though
neglected by the Parliaments, had helped to educate the people.
Since 1891, public interest in the question of Federation had been
steadily gaining ground; from 1892 onwards it began to advance
rapidly, as a result of the collapse of the " land boom," the financial
panic, and the resulting commercial depression. The crisis showed
plainly that the prosperity of each colony was bound up in that of the
others; that disaster to one meant loss to all; and that strength lay
in co-operation. These considerations helped to break down the spirit
of isolation and mutual jealousy which prosperity had fostered, and to
emphasize the dangers of disunion.

Moreover, bad times helped the cause of Federation in another
way. The general stagnation of trade set every one enquiring for him-
self into the causes which clogged the wheels; and the folly of inter-
provincial barriers became increasingly apparent. Federation began
to appeal to the pocket as well as to the heart ; and the people began
to wake up to the fact that the "fad of Federation," with which
politicians and Parliaments had been dallying so long, meant the
salvation of Australia.

Australian Natives' Association. — It had long become apparent
that the Parliaments would accomplish little without a stimulus from
their constituents; and the conviction grew that federalists must
create a public organization, with the twofold object of demonstrating
to the Parliaments the strength of the federal sentiment, and of
further solidifying and educating that sentiment. For the chief share

THE FEDERAL MOVEMENT IN AUSTRALIA. 151

in the initiation of that moyementj credit must be given to the Aus-
tralian Natives^ Association — an organization which, though less
extensive in the other colonies, had in Victoria attained an extra-
ordinary development, and represented the bulk of the political
activity and enthusiasm of the younger generation. This Association,
which was not only a power in politics, but also a political training
school of the greatest value, had always been unswerving in its zeal
for Federation ; and it was natural that the impulse for organization
should spring from it. Under the leadership of such able successive
Presidents as Mr. A. J. Peacock (1885-1886), Mr. T. J. Conneliv (1887),
Mr. J. L. Purves, Q.C. (1888-1889), Mr. D. J. Wheal (1890), Mr. G.
H. Wise (1891), this Association had helped to develop the federal
sentiment widely throughout the colony, and was persistent in its
agitation for definite action. At the end of January, 1890, a few days
before the sitting of the Federal Conference convened by Sir Henry
Parkes, a federal demonstration under the auspices of the Association
Avas held in Melbourne. It was composed of delegates from its
branches in all the colonies. This gathering, which is regarded by
the Association with just pride, was presided over by Sir John Bray,
of South Australia. Great enthusiasm and an intelligent interest in
the cause of Australian union were displayed, and the following reso-
lations formulating the basis of a Federal Constitution were passed: —

1. That the time has now arrived for the Federation of the

Australian colonies.

2. That a Federal Legislature should be established, to consist of

a Governor-General and two Houses of Parliament.

3. That the members of one House should be elected by the

Legislatures, and those of the other House by the people of
the several colonies.

4. That in one House each colony should be represented by an

equal number of members.

5. That the Federal Legislature should be empowered to deal

with national matters, including: — (1) General defences; (2)
Federal Court of Appeal; (3) relations of Australia with the
islands of the Pacific ; (4) naturalization ; (5) uniform cus-
toms duties, after a date to be agreed upon by the Legisla-
tures of the several colonies; (6) railways; (7) post and
telegraph; (8) the public debt; (9) federal revenue; (10)
the division of any colony; (11) marriage and divorce laws;
(12) insolvency; (13) quarantine regulations; (14) coinage;
(15) patents, copyrights, and trade marks; (16) all legisla-
tion affecting provincial affairs should be left to the Parlia-
ment of each colony.
FEDEaATiox Leagues. — In March, 1893, at the annual conference
of the Australian Natives' Association, held at Kyneton, the dissatis-
faction with Parliamentary dallying found vent, and it was recognized
that active popular organization was needed to impress the provincial
Parliaments with the necessity for action. As the outcome of the
Kyneton Conference, a deputation waited upon Mr. Barton to urge
hira to form a central Federation League in Sydney.

Mr. Barton himself had already been moving in the same direc-

152 HISTORICAL INTRODUCTION.

tion. Though he had been unable to do much in Parliament, he had
endeavoured by a series of public meetings in different parts of the
colony to keep the Federal lamp alight. In December, 1892, he had
visited Corowa and Albury on this mission, and had assured the folk
on both sides of the Border that a Federal League, on strictly non-
party lines, would greatly strengthen the hands of federalists in
Sydney and Melbourne. The advice was acted upon; in January,
1893, Corowa and Albury each formed an "Australian Federation
League;" and by the end of May there were 15 branches of the
League in the valley of the Murray. But the need was still felt of a
central organization to keep all the colonies in touch ; and accordingly
in June Mr. Barton convened a preliminary meeting of federalists, at
which it was resolved to form an Australasian Federation League in
Sydney ; and at a public meeting in the Town Hall on 3rd July, tha
League was formed. Its auspices were not at first very favourable.
Sir Henry Parkes stood aloof. He claimed that the idea of forming
Federal Leagfues had originated with himself, and was afterwards
appropriated by others who ignored his right to leadership (speech
at Liverpool, N.S.W., reported Sydney Morning Herald, 30th July,
1893). A meeting of the freetrade party, called by Mr. G. H. Reid,
seemed suspicious of the new League, and resolved that in the then
state of party politics no alliances could be formed even on the ques-
tion of Federation, but that individual members of the party should
be left free to use their own discretion. Opposition also turned up in
another quarter ; the members of the " Democratic Social Federation "
made a determined but unsuccessful effort to capture the Town Hall
meeting, and to pass resolutions in favour of an Austi-alian Republic.

However, the League was duly formed, with a Constitution
which pledged it "to advance the cause of Australian Federation by
an organization of citizens owning no class distinction or party in-
fluence, and using its best energies to assist Parliamentary action,
from whatever source proceeding, calculated to further the common
aim of Australian patriotism." It did not commit itself to any par-
ticular scheme of Federation, but advocated " the Federal Union of
Australasia on such lines as may be constitutionally approved by all
the colonies concerned after further deliberation and report by
assembled representatives of each." The League never had a sen-
sational history, but thenceforward to the end of the fight it shows a
record of steady organizing and educating work. It formed a nucleus
for an active body of earnest federalists in Sydney, and a connecting
link between the country leagues, which began to spring up in num-
bers, especially in the border districts. This result was largely due
to the indefatigable work of Mr. Edward Dowling, who from first to
last was principal honorary secretary to the League. The example
spread. At the end of 1893 and the beginning of 1894, leagues were
formed in Melbourne, Bendigo, Ballarat, Echuca and other Victorian
towns. In August, 1895, a league was formed at Adelaide; in July,
1898, one was inaugurated in Brisbane, and in July, 1899, one was
formed in Auckland.

Corowa Conference, 1893. — In the new movement the Border
Leagues at once began to take an active part. The policy of hostile

THE FEDERAL MOVEMENT IN AUSTRALIA. 153

tariffs and commercial isolation doubtless affected the great cities in
an equal degree ; but to the dwellers near the border the disadvan-
tages were more direct and more obvious. The Border Leagues,
therefore, were among the most active missionaries in the movement;
and on their invitation a Conference was held at Corowa, on 31st July
and 1st August, 1893, to which representatives from trading and
commercial bodies. Federation Leagues, branches of the Australian
Natives' Association, and kindred associations on both sides of the
Murray, were invited. The Sydney League sent two delegates, all the
Border Leagues were represented, and representatives from various
Vjranches of the Australian Natives' Association — especially on the
Victorian side — mustered in force. The usual resolutions expressing
the urgent need for Federation were proposed and warmly supported,
and united organization were resolved upon ; but as the proceedings
drew to a close it was felt that something more was required. Of
enthusiastic speaking there was no end; the demand was now made
for some definite and practical basis of action. To meet this. Dr. John
Quick, a representative of the Bendigo branch of the A.N.A., proposed
a resolution which marked a new epoch and initiated a new mode of
dealing with the question : — " That in the opinion of this Conference
the Legislature of each Australasian colony should pass an Act pro-
viding for the election of representatives to attend a statutory Con-
vention or Congress to consider and adopt a Bill to establish a Federal
Constitution for Australia, and upon the adoption of such Bill or
measure it be submitted by some process of referendum to the verdict
of each colony." This resolution was carried unanimously, and was
the achievement which makes the Corowa Conference historically
important.

Dr. Quick did not leave the resolution to its fate, but, upon his
return to Bendigo, elaborated it into a definite scheme. He framed
an "Australian Federal Congress Bill," which he submitted to the
Bendigo League, and which was discussed and adopted by that body
and was published on 1st January, 1894. This Bill in its main features
became the basis of the Enabling Acts which were afterwards passed
in all the colonies, and by means of which the cause of Australian
union was ultimately brought to a successful issue. It purported to
*' provide for the representation of Victoria at an Australasian Con-
gress legally created to frame a Constitution for the Federation of the
Australasian colonies, and further to provide for the reference of such
Constitution when framed to the vote of the people," and was designed
as the model for a series of Acts to be passed, in substantially uniform
shape, in all the colonies. The procedure which such a series of Acts
would have laid down is shortly this : —

(1.) That each colony should elect, on its Parliamentary franchise,
ten representatives to a Federal Congress.

(2.) That the Congress should frame a Federal Constitution.

(3.) That, on a day to be arranged between the Governments, the
Federal Constitution should be referred to the electors of
each colony for acceptance or rejection.

(4.) That if the Constitution were accepted by majorities in two
or more colonies, it should be forwarded to the Imperial
Government to be passed into law.

154 HISTORICAL INTRODUCTION.

The novel and all-important element in this proposal was the idea
of mapping out the whole process in advance by Acts of Parliament —
of making statutory provision for the last step before the first step
was taken. Hitherto, each successive step in the framing of a Con-
stitution had been left dependent on the concurrence of all the Parlia-
ments or all the Governments for the time being ; with the result that
every hitch, every discouragement, had led to delay, and all the zeal
and labour expended on the Commonwealth Bill of 1891 seemed in
danger of being lost, and the prospect of bringing the question to a
final issue was as remote as ever. But here was a scheme which,
when once launched, would ensure the framing of a Constitution and
its submission to the people. Every step in the process would thus be
invested, in the minds of the people, with a seriousness and importance
otherwise unattainable. Those who had jested at the Convention of
1891 as a body of men engaged in the amiable and amusing task of
drawing up a Constitution for the waste-paper basket would have to
admit that there was something serious about a Constitution which,
when framed, the Government would be obliged by law to submit to
the electors for their acceptance or rejection.

Another feature of the scheme, equally important, but not abso-
lutely new, was the principle of the direct popular initiative in the
election of the Congress or Convention. The two things now wanted
were popular interest in the framing of a Constitution, and popular
confidence in the Constitution when framed ; and the best guarantee
of both these things was that the people should be asked to choose for
themselves the men to Avhom the task was to be entrusted. The
adherents of the Parliamentary system had thought that the
people would be less likely than the Parliaments to select men who
by ability and training were most suited for the work of Constitution-
making ; but they had forgotten that more important even than the
j)ersonnel of the Convention was the public confidence in the Con-
vention. The result showed that the chosen representatives of the
people were for the most part those who would have been the chosen
representatives of the Parliaments ; but from the fact of their election
by the people they had a power, and they enjoyed a confidence, which
election by the Parliaments could never have given them.

But though Dr. Quick's scheme meant a new start, it did not
mean that the work already done was to be wasted. It was intended
to supersede, not the Commonwealth Bill, but the process of dealing
with that Bill ; not the work of the Sydney Convention, but the
abortive attempts to complete that work. The assembling of a second
convention — the expediency of having it elected by the people — the
necessity of a final referendum — had already been suggested in con-
nection with the Bill of 1891. What had not hitherto been suggested
was that all these steps should first be pre-ordained by Enabling Acts
in all the colonies.

The new proposals at once attracted attention. They were
favourably noticed in the press, they were discussed and reported
upon by Federation Leagues and kindred bodies ; they were ex-
pounded by the framer himself at meetings at various places. In
January, 1894, he came to Sydney, and explained his scheme to a

THE FEDERAL MOVEMENT IN AUSTRALIA. 155

meeting of the Central League, which referred it to a Select Com-
raittee for consideration and report. This Committee presented its
report at a meeting of the League held on 15th March, when the
report was unanimously adopted. The report heartily endorsed the
idea of mapping out the programme by Enabling Bills in all the
colonies, but suggested a modification in the process of framing the
Constitution — namely, that each colony should first elect, on its Par-
liamentary suffrage, a provincial Convention to formulate its own ideas
of a scheme of Federation, and that these schemes should then be
submitted to a Federal Convention, elected by the Parliaments, which
should frame a Federal Constitution in which the views of the several
colonies should as far as practicable be harmonized. It was feared
that the attempt to strike off a Federal Constitution at one sitting,
Avithout consulting the separate colonies except for the final vote on
the completed Constitution, might fail to secure adequate adjustment
of conflicting interests, and thus lead to the rejection of the Constitu-
tion at the polls.

DiBBs' Unification Scheme. — At this stage an interlude occurred
in the shape of an alternative scheme of union, drawn up by Sir
George Dibbs, the Premier of New South Wales. He had always
been a severe critic of the Commonwealth Bill ; and on 22nd Mav,
1894, in a speech to his constituents at Tam worth, he propounded a
scheme of complete unification. This scheme was immediately con-
demned by Sir Henry Parkes and Mr. Barton, and by the federalist
press, as being impracticable ; but Sir George Dibbs shortly afterwards
formulated it in a letter dated 12th June to Sir James Patterson,
Premier of Victoria, in which he announced that the consideration he
had given to the federal question since the Convention of 1891, but
" more especially since the fiasco of the banking crisis found us so
injuriously divided," had led him to the conclusion " that it would be
easier first to completely unify the interests of the two great colonies
of Victoria and New South VV^ales, and then to attract neighbouring
colonies within the sphere of our extended influence." He set out his
objections to the Commonwealth Bill ; it leant too much to American
ideas, too little to Canadian ; it involved tlie expense of State and
Federal establishments ; ." its financial provisions were unfair and
unworkable ; equal representation in the Senate was absurd. On the
other hand, it secured no federal control over public debts, railways,
or land revenues, and would tend to perpetuate existing rivalries.
" How far more beneficial in every way ; how far more likely to
extend our revenues and minimise our expenditures ; how far more
impressive to the outside world and to our creditors in England,
would be a complete pooling of our debts, our railways, our national
establishments generally. We are none of us so badly off that we
cannot be permitted to meet each other on equal terms. lu such a
partnership New South Wales would not be disposed to say to her
neighbours, ' Your debts are more burdensome, your railways and
lands less productive than ours.' We would give to the United
Government that prestige and supreme control which is almost entirely
denied under the Commonwealth scheme, wherein the Federal Legis-
latui-e would be numerically and structurally wholly overshadowed by

156 HISTORICAL INTRODUCTION.

the provincial Governments ; and without haggling over the items, we
would be prepared to hand over our Custom-houses, post offices, and
other necessary establishments for the common good, provided others
did the same." That there must be local governments in the provinces
he admitted ; but he would confine these local governments, " as in
Canada," within subordinate limits, and to strictly local purposes.
He practically admitted that the other colonies could not be induced
to join such a union at the outset ; but he submitted the following
draft outline of a scheme for the consideration of the people of the
two colonies of New South Wales and Victoria : —

" Unification of New South Wales and Victoria as a preliminary
to complete Australian Union.

" Union for all national purposes to be complete as under : —
(1.) One Viceroy, or Governor.
(2.) One Parliament of two Chambers.
(3.) One Customs tariff.
(4.) One scale of excise duties.
(5.) One joint debt.
(6.) One railway management.
(7.) One land revenue and one land law. Until the laws are

consolidated, existing regulations to hold good.
(8.) One Defence Administration.
(9.) One postal and telegraph administration.
(10.) Provincial Government, with wide local powers.
(11.) Surplus revenue of the Supreme Government to be appor-
tioned to the Provinces — partly on a population basis,
partly on an occupied mileage area basis.
(12.) Certain departments of the Public Service removed from
political influence may have their headquarters in Mel-
bourne, others in Sydney.
(13.) One High Commissioner's establishment in London, repre-
senting the whole.
(14.) One Supreme Court.

(15.) Title, ' The United Colonies.' Afterwards, when South
Australia and Queensland come in, the title to be ' The
Dominion of Australia.' "
This letter evoked merely a non-committal reply from Sir James
Patterson, but it was printed and circulated, and found a certain
number of adherents. Unification — assuming it to be practicable —
does undeniably present certain advantages over Federation, and has
always, in the minds of many people, seemed a preferable form of
Government. Sir George Dibbs, of course, was not the first apostle of
unification — an idea which really meant little more than undoing the
work of separation and re-establishing the earlier complete unity.
Sir John Robertson — a typical New South Wales anti-federalist — had
always expressed his willingness to welcome Victoria back as a
"repentant child;" and there is reason to believe that even Sir
Henry Parkes, at the very outset of his career, had some leaning to a
complete amalgamation. He had soon convinced himself, however,
that a federal union was the only form of union to which the assent of

THE FEDERAL MOVEMENT IN AUSTRALIA. 157

the Australian colonies could possibly be secured. The history of the
colonies as self-governing communities had given rise to local senti-
ments and local patriotisms ; their several free institutions were the
results of long and arduous political struggles; and any attempt to
abolish the constitutions of the colonies entirely, to overthrow their
existing Parliaments and their existing local independence, would be
an impossible task. Nor, if possible, is it clear that it would be
desirable ; for unification has its disadvantages as well as its advan-
tages. The immense areas of the different colonies, and their
climatic and industrial conditions, make the preservation of their
individuality highly important ; whilst they also afford a strong argu-
ment against entrusting unlimited powers to a central government
which, in the nature of things, cannot have complete knowledge of,
nor complete sympathy with, all the different local requirements of
the different colonies.

Much that Sir George Dibbs said about the omissions of the
Commonwealth Bill and the desirableness of federating the railways
and the debts, had a great deal of force. Still, this was criticism
which did not involve the federal principle of the Bill, but merely the
extent of federal control. The shortcomings which he mentioned
were curable without any departure from the federal principle, and
have indeed for the most part been cured by the subsequent elabora-
tion of the Bill.

One serious blemish of the Dibbs scheme was that it deliberately
contemplated dividing Australia into two sections — the large States
and the small States — and denying to the latter any voice in the form
of the union. New South Wales and Victoria were to frame the
Constitution, and the other colonies were to accept the terms dictated,
or stay outside. The impossibility of getting them willingly to con-
sent to practical annexation was apparent ; but whether — if the initial
difficulty of amalgamating the two large colonies had been surmounted
— the others could ever have been forced in, is highly doubtful. The
irritation which such an attempt would have caused would have been,
to say the least of it, an unfavourable auspice for union.

The unification idea has undoubtedly had some influence on the
structure of the Constitution as it stands to-day j but not enough to
satisfy the extreme unificationists, whose weight, curiously enough,
has chiefly been thrown into the anti-federal scale. Sir George Dibbs^
scheme has been more or less prominent, throughout the whole history
of the movement, as a counterblast to the panegyrists of the Federal
Constitution. It has afforded an opportunity to assert that the
federalists are only half and half unionists — are in fact the " real pro-
vincialists " — and that the real unionists are those who preach an
impracticable unification. But it has never been an active mission on
its own account and for its own sake.

The Reid Ministry. — On 2nd August, 1894, after a general elec-
tion, the Dibbs Government resigned, and next day the Reid Adminis-
tration came into office. Mr. Reid immediately placed Federation on
his programme, and in his manifesto to the electors of King Division
declared that his Government would ''lose no time in restoring the
subject of Australian Federation to its rightful position of commanding

158 HISTORICAL INTRODUCTION.

importance and urgency." He soon announced that he was in favour
of a new Convention elected by the people of all the colonies, and he
communicated with the other Premiers with a view to a preliminary
conference. Federation, however, did not occupy the first place in
the list. Matters of local legislation, and particularly the question
with which the Ministerial party were most closely associated — the
repeal of the Dibbs duties and the substitution of a purely freetrade
tariff, with land and income taxes — took precedence. On 12th No-
vember the Premier was waited upon by a deputation from the
Federation League, which placed before him Dr. Quick's scheme and
the League's report upon it. He received them favourably, and
declared himself deeply impressed with the merits of the two schemes;
but said that as the procedure to be adopted was to be discussed with
his brother Premiers, and must be the result of joint deliberations, he
could not at that stage commit himself to a definite course.

Next day Sir Henry Parkes moved in the Assembly the follow-
ing resolution : — " That in view of the rapid growth of Australia in
the elements of national life, and the number of questions arising out
of that growth which can only be dealt with adequately by a national
Legislature, it is in the highest sense desirable that Parliament,
without loss of time, should resume the consideration of the Federation
of these colonies under one national Government.^' He emphasized
the fact that this motion had no relation to any party, or to an}^
personal feeling — though he hinted that there was somebody of whom
he strongly disapproved. In a dignified and statesmanlike speech he
urged the importance of prompt action, but oracularly refrained from
any definite proposal. He deprecated, however, throwing aside the
Convention of 1891, and starting afresh with any less representative
body ; and he insisted that every step must be made in concurrence
with all the other colonies — words which excluded the Dibbs scheme,
but which left his attitude with regard to the Enabling Bill process in
doubt. Mr. Reid, in reply, reiterated the views he had expressed to
the deputation. The debate disclosed little opposition, but not very
much enthusiasm ; speakers from the labour party especially main-
taining that other matters were more urgent. The resolution was
carried, after several hours' debate, by 55 votes to 10 — the noes
mostly consisting of labour members.

The Premiers' Conference. — The Conference of Premiers met at
Hobart, on 29th January, 1895, the Premiers present being Mr. Reid
(New South Wales), Mr. (afterwards Sir) George Turner (Victoria),
Mr. (afterwards Sir) Hugh M. Nelson (Queensland), Mr. C. C.
Kingston (South Australia), Sir Edward Braddon (Tasmania), and
Sir John Forrest (Western Australia). The following resolutions,
submitted by Mr. Reid, were carried : —

(1.) That this Conference regards Federation as the great and

pressing question of Australasian politics.
(2.) That a Convention, consisting of ten representatives from

each colony, directly chosen by the electors, be charged

with the duty of framing a Federal Constitution.
(3.) That the Constitution so framed be submitted to the electors

for acceptance or rejection by a direct vote.

THE FEDERAL MOVEMENT IN AUSTRALIA. loij

(4.) That such Constitution, if accepted by the electors of three
or more colonies, be transmitted to the Queen bj an
Address from the Parliaments of those colonies praying
for the necessary legislative enactment.
(5.) That a Bill be submitted to the Parliament of each colony
for the purpose of giying effect to the foregoing resolutions.
(6.) That Messrs. Turner and Kingston be requested to prepare a

draft Bill for the consideration of this Conference.
Except for Mr. Xelson and Sir John Forrest, these resolutions
^vere carried unanimously. Mr. Xelson agreed to everything except
the proposal that the Constitution should be submitted for the
approval of the electors of each colony ; he thought that the approval
of the colonies "should be obtained in such manner as each colony
may prescribe in the Act authorizing such Convention." Sir John
Forrest appended the following statement : — " "While agreeing that
Federation is the great and pressing question of Australasian politics,
I am opposed to the procedure proposed to be adopted, and I am of
opinion (1) that the draft Commonwealth Bill of 1891 should be first
considered by the Parliaments of the respective colonies; (2) that
any amendments made by the several Parliaments should be referred
to a second Convention to be appointed by the several Parliaments
after a general election, and that the Bill, as approved by this second
Convention, be final, and be submitted for the necessary Imperial
legislation."

Mr. Kingston would have preferred to begin with an Imperial
Federal Enabling Act which would enable the colonies, without
further Imperial legislation, to adopt any Constitution framed as
above, subject only to the Koyal assent. He did not, however, think
that this view ought to prevent South Australians co-operation in the
scheme proposed.

On 6th February the draft Bill prepared by Mr. Turner and Mr.
Kingston was " considered, amended, and agreed to as the draft of a
type of Bill suitable for giving effect to the resolutions of the Confer-
ence." Mr. Reid intimated that "so soon as practicable after the re-
assembling of the New South Wales Parliament his Government would
introduce a measure providing for the chief objects of the Bill as
defined in the draft." Messrs. Turner, Kingston, Nelson, and Sir
Edward Braddon intimated that as soon as New South "\V^ales had
passed the Bill they would follow suit — Mr. Nelson, however, reserving
the right to dispense with, the direct reference to the electors. Sir
John Forrest was not present, and was not committed in any way.

The draft Bill framed by the Conference provided in detail for
the procedure outlined by the resolutions; and it embodied one very
important amplification of them. It provided that the Convention,
after framing a draft Constitution, should adjourn for a period of not
less than 30 and not more than 60 days ; and that it should then re-
assemble, reconsider the Constitution with any amendments that
might be proposed, and finally adopt it with any amendments that
might be agreed to. This provision obviated the objections which the
Sydney league had made to Dr. Quick's scheme. It gave time for
reflection and reconsideration; it gave an opportunity for the several

160 HISTORICAL INTRODUCTION.

colonies, through their legislatures or otherwise, to formulate their
criticisms and objections; and it thus ensured a more thorough
threshing out of all questions of conflicting interest. The Premiers'
plan thus followed in the main the outlines of Dr. Quick's proposal.

The merits of this scheme were obvious and notable. It avoided
all the great defects of the process of 1891. It secured popular
interest, by providing that the members of the Convention should be
elected by the people themselves, and that the Constitution should be
submitted to the people themselves for acceptance. It conciliated the
Parliaments by giving them a voice in initiating the process, a voice
in criticizing the Constitution before its completion, and a voice in
requesting the enactment of the Constitution after acceptance. In
other words, whilst necessarily assigning to a single body, representa-
tive of all the colonies, the task of framing the Constitution in the
first instance and finally revising it, it ensured that both the peoples
and the Parliaments of the several colonies should be consulted at
every stage — in initiation, in delibei'ation, and in adoption. And
lastly, by making statutory provision in advance for every step of the
process, it ensured that the matter once begun should be brought to
an issue. No fuller security could have been given that the Constitu-
tion would be based upon the will of the people and of the people's
representatives.

The Enabling Acts. — There was not even yet an end of all
delays. The fiscal legislation of the Reid Government involved a
dispute between the Houses, a dissolution, and a general election. In
December, 1895, however, the new policy was carried into effect, and
Acts imposing taxes on the unimproved value of land and upon
incomes were passed, as well as a Customs Duties Act, which repealed
the Dibbs duties of 1891, and substituted an extremely freetrade
tariff. This fiscal system had afterwards an important bearing on
the criticisms directed against the financial provisions of the Federal
Constitution.

Meanwhile in October an Enabling Bill had been introduced,
following for the most part the lines of the Premiers' draft Bill.
The only alteration of importance was that the interval between the
two sittings of the Convention was increased to " not less than 60 and
not more than 120 days," with the object of allowing ample time for
Parliamentary discussion of the Constitution. On the motion to
introduce the B511, Mr. Henry Copeland moved an amendment to the
effect that the proper basis for advancing the federal movement was
the consideration of the Commonwealth Bill of 1891 by means of the
procedure laid down by the Convention. This proposal however
received little support, and was defeated on division by 59 votes to 7.
On the second reading, Mr. McMillan opposed the principle of a Con-
vention elected by the people, arguing that the selection of a suitable
combination of trained men would be better performed by Parlia-
ment J and he moved an amendment to refer the question to a Select
Committee. This also was defeated, and the second reading was
carried on division by 62 votes to 5.

In Committee, an amendment was moved by Mr. A. B. Pidding-
ton to provide for the selection of the representatives by a college of

THE FEDERAL MOVEMENT IN AUSTRALIA. 161

federal electors ; but this found no favour, and was negatived. Mr.
W. M. Hughes (a labour member) moved an amendment to provide
that the several colonies, instead of being represented equally in the
Convention, should be represented in proportion to population ; but
with a maximum of ten and a minimum of five representatives.
This caused considerable debate ; it being argued on the one side that
the Convention could not represent the people of Australia fairly
unless it represented them proportionately, and pointed out on the
other that the Convention did not purport to represent the people of
Australia, but only the peoples of the colonies gathered together to
confer on equal terms. Ultimately the amendment was negatived on
division by 45 votes to 26, the minority consisting for the most part
of labour members. On the question of the acceptance of the Con-
stitution by a majority of the voters, it was argued that there ought
to be some provision to prevent the Bill being accepted if the number
of votes polled was not large enough to be representative. An
amendment requiring a total poll of one-third of the electors was
defeated by S6 votes to 17; another requiring a total poll of one-
fourth of the electors was defeated by 34 votes to 14 ; but subse-
quently Mr. Reid agreed to an amendment requiring 50,000 affirmative
votes.

On 11th December, the Bill was debated in the Legislative
Council. Considerable opposition was manifested, but no division was
taken on the Bill, which was passed with unimportant amendments,
and received the royal assent on 23rd December.

There can be no doubt that the Enabling Bill would have
encountered more serious opposition in both Houses had the opponents
of Federation realized the importance of the step that was bein^
taken. They misjudged the vitality of the movement, and did not
anticipate the stimulating effect of placing it on a popular basis.
They expected that the new Convention, if it ever met, would be as
futile as the last had apparently been ; and they trusted, in the last
resort, to be able to secure the rejection of any Constitution which
did not satisfy what they believed would be the demands of Xew
South Wales. They thought that Federation could be trifled with
again as it had been in the past ; and did not foresee the irresistible
momentum which the federal cause would gather, or the completeness
with which it was about to sweep away minor issues, and leap to the
front as the first great practical question of Australian politics.

Xew South Wales having redeemed her pledge and led the way,
other colonies were not slow to follow. South Australia, under Mr.
Kingston's leadership, took action as soon as it was clear that Xew
South Wales was in earnest, and dealt with the Enabling Bill so
promptly that it became law on 20th December — three days in advance
of the mother colony. The only substantial variation in the South
Australian Bill was that no minimum vote was required for the
acceptance of the Constitution. The Tasmanian Bill, introduced by
Sir Edward Braddon, came next, and was passed on 10th January,
1896. It required for acceptance of the Constitution a minimum
affirmative vote of 6000 — representing about the same proportion of
voters as the Xew South Wales minimum. In Victoria, an Enabling

162 HISTORICAL INTRODUCTION.

Act had been introduced by Sir George Turner in December, and had
passed the Assembly almost without opposition, the division on the
second reading being 71 to 4. In the Council an amendment was
made which the Assembly regarded as infringing its money powers,
and which resulted in a temporary deadlock. In February, however,
a second Bill was introduced, which became law on 7th March, 1896.
It required a minimum affirmative vote of 50,000.

Queensland and Western Australia were now being waited for.
But Sir Hugh Nelson, the Queensland Premier, had meanwhile dis-
covered difficulties in the way of passing a Bill in the form agreed
upon. Queensland was tripartite in interest, the North and the Centre
being arrayed against the South in their demand to be erected into
separate colonies. This question of separation became interwoven
with the question of Federation. The North and the Centre looked
forward to Federation, not only for its own sake, but also as a step
towards subdivision ; whilst Brisbane and the South feared that their
trade would suffer from open competition with New South Wales and
its metropolis. Each of the three divisions preferred to have separate
representation in the Convention rather than to trust to the chances
of a single electorate. Moreover, the Government and a large section
of the Parliament favoured Parliamentary rather than direct election.
Sir Hugh Nelson accordingly provided in his Bill that the Queensland
representatives should be elected by the members of the Legislative
Assembly, grouped according to the three great districts. The
Premiers of the four colonies which had substantially adopted the
model Bill joined in a remonstrance against this departure from the
Hobart understanding; but without avail. Sir Hugh Nelson pro-
ceeded with the Bill, but somewhat half-heartedly, without committing
himself to the whole of the process, and reserving to the Parliament
the right to send the Constitution to the people or not, as it pleased.
He made no profession of being an ardent federalist, but argued that
it could do no harm to have a voice in framing the Constitution, which
they would afterwards be free to accept or reject. On the motion for
the second reading, Mr. G. S. Curtis moved an amendment affirming
that no Enabling Bill would be acceptable which did not provide for
the election of representatives by direct popular vote. This was nega-
tived by 36 votes to 26, and the Bill passed the Assembly in July,
1896. But in the Council it was not unnaturally claimed that if the
election was to be Parliamentary, both Houses should take part in it;
and accordingly the Bill was returned to the Assembly amended to
that effect. The Assembly, however, denied the representative
character of a nominee House. The difference between the Houses
proved irreconcilable; and in November — though Mr. lleid journeyed
to Brisbane to assist a settlement — the Bill was laid aside.

Meanwhile Western Australia had decided to fall partially into line
with the movement, and had on 27th October, 1896, passed an Enabling
Act, which, however, differed in important respects from the others.
In the first place, the federal representatives of that colony were to be
chosen, not by the people, but by both Houses of Parliament sitting
together. And in the next place, the Constitution as framed by the
Convention was only to be submitted to the people " if approved by

THE FEDERAL MOVEMENT IX AUSTRALIA. 163

Parliament." The Parliament of AV estern Australia, therefore, only
gave a conditional adherence to the Enabling process, reserving to
itself the right to draw back before the final stage.

The Bathurst Convextiox. — A symptom of awakening public
interest, and at the same time a means of stimulating that interest,
was afforded in November, 1896, by a " People's Federal Convention "
held at Bathurst — an unofficial assemblage to which delegates were
invited from leagues and organizations of all kinds throughout Aus-
tralia. The Convention numbered nearly 200 representatives, mostly
from Xew South Wales, but including several from other colonies.
Its aim was both educative and deliberative ; and its chief work took
the form of a detailed discussion of the Commonwealth Bill of 1891.
Federation was just then, for the first time, a question in which the
people could take a practical and responsible interest, because on the
statute book of four colonies were Acts requiring the people first to
elect representatives to frame a Constitution, and then to say '' Yes "
or " Xo " to the adoption of that Constitution. The Bathurst Con-
vention was opportune ; its proceedings were reported at length by
the press, and followed with interest throughout Australia. The
debates not only showed a general appreciation of the federal spirit,
but contributed some really valuable suggestions — particularly in
respect of the difficult question of finance. But perhaps the Con-
vention did best service in helping to dissipate the atmosphere of
suspicion which, in the minds of a section of the people, had always
hung round the Commonwealth Bill. Vague impressions were abroad
that the Bill was a compound of " Toryism," " Imperialism," " Mili-
tarism," and other unpopular qualities ; but the Bathurst Convention,
though reflecting every shade of political and social belief, failed to
find these defects. The fact that the Commonwealth Bill was by
general consent taken as the basis of discussion, and that it came so
well out of the ordeal, helped to establish its position as a draft Con-
stitution which must be the basis of all future deliberations.

The Convextiox Elections. — It was decided to wait no longer
for Queensland; and 4th March, 1897, was fixed as the date for the
election of federal representatives of Xew South Wales, Victoria,
South Australia, and Tasmania. In each colony the election was
preceded by a campaign ; though, owing to the large size of the
constituencies — each colony being one electorate for the purpose — no
thorough canvass was possible, and printed addresses largely took the
place of speeches.

In New South Wales the 10 seats were contested by 49 candi-
dates. First there were a number of public men of various political
faiths and constitutional views, but who may all be classed as federalists.
Cardinal Moran, Roman Catholic Archbishop of Sydney, was among
the candidates. Then there were the " Labour Ten," a bunch chosen
by the Political Labour League of New South Wales. They insisted
on a Federal Legislature of one chamber, elected on a population
basis ; a federal franchise giving " one man one vote ;" payment of
members of the Federal Parliament ; elective Ministers ; the Initiative
and the Referendum. On these terms they were prepared to give the
Federal Parliament large powers; but they announced that " on any

164 HISTORICAL INTRODUCTION.

other conditions we are opposed to Federation." There was also a
bunch of five gentlemen nominated by the " Patriotic League of New
South Wales/' whose patriotism was avowedly provincial, and who
styled themselves " Prudent Federalists." They wished each colony
to retain its provincial tariff, and objected to the Federal Government
having any taxing powers, except by way of a levy on the States.
The list was filled up by a few comparatively unknown candidates, of
little representative importance.

The election was in no sense a party fight ; and although some
organizations put forward " tickets," the candidates were mostly voted
for on their public reputations. The result was a triumph for the
federalists, the ten representatives being elected in the following
order: — Mr. Edmund Barton, Q.O. ; Hon. G. H. Reid, M.L.A.
(Premier) ; Hon. J. H. Carruthers, M.L.A. (Minister for Lands) ; Mr.
W. McMillan, M.L.A. (ex-Treasurer) ; Mr. AY. J. Lyne, M.L.A.
(Leader of Opposition) ; Hon. J. N. Brunker, M.L.A. (Chief Secre-
tary) ; Hon. R. E. O'Connor, Q.C., M.L.C. ; Hon. Sir J. P. Abbott,
K.C.M.G. (Speaker) ; Mr. J. T. Walker; Mr. B. R. Wise (ex- Attorney-
General) .

Each voter had to vote for 10 candidates ; and the number of
those who recorded their votes was 139,850, out of a total of some
260,000 electors — a poll not quite up to the usual standard of a general
election, but very satisfactory considering the unusual conditions of
the contest. Mr. Barton headed the poll with a magnificent vote of
nearly 100,000, and the lowest elected candidate secured some 53,000
votes. The Labour Party, with their impossible programme, were
very low in the list ; though their leader, Mr. J. S. T. McGowen, polled
some 40,000 votes, and would doubtless have been higher but for the
bold attempt of his " bunch " to capture the Convention. The
" Prudent Federalists " were nowhere. But though all the selected
candidates were federalists, it cannot be said that the election disclosed
any definite " mandate " as to constitutional principles.

In Victoria 29 candidates were nominated. The voting, on the
whole, was more on party lines than in New South Wales — the
''tickets" of the Argus and the Age, the two daily morning news-
papers of Melbourne, being voted extensively ; yet the polling was
not nearly so heavy — votes being recorded by only 99,108 electors out
of some 238,000 on the rolls. The ten representatives were elected in
the following order : — Hon. Sir George Turner, K.C.M.G., M.L.A.
(Premier); Dr. John Quick (ex-M.L.A.) ; Hon. Alfred Deakin, M.L.A.
(ex-Minister) ; Hon. A. J. Peacock, M.L.A. (Chief Secretary) ; Hon.
T, A. Isaacs, M.L.A. (Attorney-General) ; Mr. W. A. Trenwith,
M.L.A. ; Hon. Sir Graham Berry, K.C.M.G. (Speaker) ; Hon. Simon
Fraser, M.L.C; Hon. Sir William A. Zeal, K.C.M.G. (President
Legislative Council) ; Mr. H. B. Higgins, M.L.A.

In South Australia there were 33 candidates. The elected repre-
sentatives were : — Hon. C. C. Kingston, Q.C., M.L.A. (Premier) ; Hon.
F. W. Holder, M.L.A. (Treasurer) ; Hon. J. A. Cockburn, M.L.A.
(Minister for Education) ; Hon. Sir R. C. Baker, K.C.M.G. (President
Legislative Council) ; Hon. J. H. Gordon, M.L.C. ; Mr. J. H. Symon,
Q.C. (ex-Attorney-General) ; Hon. Sir John W. Downer, Q.C.,

THE FEDERAL MOVEMENT IN AUSTRALIA. 165

K.C.M.G., M.L.A. (ex-Premier); Mr. P. McM. Glynn; Hon. J. H.
Howe, M.L.A. (ex-Minister) ; Mr, V. L. Solomon, M.L.A.

In Tasmania there were 32 candidates ; and owing to the com-
paratively small area of the colony a larger proportion of the electors
than elsewhere could be reached by public meetings — a circumstance
which contributed much to the federal education of the people. The
elected representatives were : — Hon. Sir Philip O. Fvsh, K.C.M.G.,
M.H.A. (Treasurer) ; Hon. Sir Edward N. C. Braddon, K.C.M.G-.,
M.H.A. (Premier) ; Hon. Henry Dobson, M.H.A. (ex-Premier) ; Hon.
John Henry, M.H.A. (ex-Treasurer) ; Hon. N. E. Lewis, M.H.A. (ex-
Attorney-General) ; Hon. Nicholas J. Brown, M.H.A. (Speaker) ;
Hon. C. H. Grant, M.L.C. ; Hon. Adye Douglas (President Legislative
Council) ; Hon. William Moore, M.L.C. (Chief Secretary) ; Mr. M. J.
Clarke, M.H.A.

The first meeting of the Convention was fixed for 22nd March ;
and on 12th March, almost at the last moment, the West Australian
Parliament amended its Enabling Act, so as to allow the more speedy
selection of the representatives of that colony. Next day the polling
took place, the members of both Houses electing the following repre-
sentatives : — Hon. Sir John Forrest, K.C.M.G., M.L.A. (Premier) ;
Hon. Sir James G. Lee-Steere (Speaker) ; Mr. George Leake, M.L.A.
(Leader of Opposition) ; Hon. F. H. Piesse, M.L.A. (Commissioner of
Railways) ; Hon. J. W. Hackett, M.L.C. ; Mr. W. T. Loton, M.L.A. ;
Mr. W. H. James, M.L.A. ; Mr. A. Y. Hassell, M.L.A. ; Mr. R. F.
ShoU, M.L.A. ; Hon. J. H. Taylor, M.L.C.

(10) ADELAIDE SESSION OF THE CONVENTION, 1897.

The first meeting of the Convention took place at Adelaide on
22nd March, 1897 ; though the West Australian representatives did
not arrive till four days later. Before the Convention opened, each
delegation met to consult, and then all the members held a private
caucus for the preliminary discussion of methods of procedure. The
representatives met at noon in the House of Assembly Chamber, when
the Clerk of the Parliaments (Mr. E. G. Blackmore) read the procla-
mation convening the Convention, and the representatives present
signed the roll. Mr. Kingston, as Premier of the colony in which the
Convention was held, was appointed President, and Mr. E. G. Black-
more Clerk of the Convention.

The first thing to decide was whether the Convention should
openly take the Bill of 1891 for its basis, and work upon that, or
should proceed to originate a new Constitution. It leaked out that
the caucus had decided to begin by discussing general resolutions,
and then appoint a Committee to draft a Bill; but the matter was
discussed again in Convention. Each plan had its advantages, and
opinion was divided. It was obvious that any new draft would borrow
largely from the old, and some of the members thought it merely
affectation, as weU as waste of time, to throw aside a Bill which
admittedly would make an excellent foundation. But the argument

166 HrSTORTCAL INTRODUCTION.

prevailed that the Convention^ having been chosen by the people to
" frame ^' a Constitution^ would best cany out its mandate, and best
earn the confidence of its constituents, by beginning at the beginning,
I and not formally building its work on the foundations, however excel-
lent, laid down by others.

Federal Eesolutions. — The Convention was as yet " a Parliament
without an Executive." Sir George Turner suggested that Mr.
Barton should be entrusted with the task of drawing up preliminary
resolutions; and at a further suggestion by Mr. Symon, Mr. Barton
undertook the duties of " Leader of the Convention." His first step
was to move a series of resolutions enunciating a few leading principles
and the general outlines of a Constitution, almost exactly in the form of
Parkes' resolutions of 1891. One new feature, however, was a pre-
liminary affirmation, understood to have been suggested by Mr. Wise,
that the purpose of the union was ''to enlarge the powers of self-
government of the people of Australia." The debate on these resolu-
tions occupied seven sitting days, and had the important practical
result of bringing the members of the Convention iuto touch with one
another, and of making known their different views. Mr. Barton, in
an admirable speech, appealed to the Convention to approach the
question with an open mind and in a spirit of compromise ; and
explained that the object of the resolutions was to have a preliminary
debate wide enough in its scope to bring out every view and opinion
on the main issues, and yet to avoid, at this stage, any final judgment
upon non-essentials. He touched upon the different features of the
resolutions, in a non-contentious way ; but thought it more important
for the new members, whose opinions were not on record, to have an
opportunity of being heard. Sir Richard Baker followed with a
weighty presentation of the argument for giving the Senate equal
power with the House of Representatives. Responsible Government
was, he said, inconsistent with true Federation; it would either kill
Federation or Federation would kill it. No Government could carry
on if it needed majorities in both Chambers; and if it were only
responsible to one — if one Chamber were to predominate — the whole
principle of Federation would be gone. Responsible Government had
never been tried in a Federation — for Canada was none — and was
inconsistent with the essential conditions of Federation. He there-
fore favoured the Swiss form of Executive.

Sir George Turner set the example of giving his views in greater
detail. He indicated his attitude on most of the debatable questions,
and from then onward the debate spread over the whole ground
covered by the resolutions. A few points of difference began to loom
up and assume importance from the first. Foremost among these
was the power to amend money Bills, as to which it soon became
apparent that the representatives of the larger and the smaller colonies
were both disinclined to compromise. The representatives of the small
colonies stood out for a strong Senate, and were disposed to let Re-
sponsible Government take its chance. The representatives of the
large colonies either denied Sir Richard Baker's premiss that two
Houses with equal powers were necessary for an ideal Federation,
or argued that the ideal must be sacrificed to practical necessities.

THE FEDERAL MOVEMENT IN AUSTRALIA. 167

The need of some provision for deadlocks was forcibly urged by the
Victorians. Both a joint sitting and a dissolution of the Senate were
suggested, but the preference seemed to be for some form of referen-
dum— the Victorian Premier and his Attorney-General, Mr. Isaacs,
especially favouring a dual referendum to the people and the States.
By other members, every deadlock provision was objected to as
destroying the Senate's power to protect State interests. The financial
question was debated at some length — especially by Mr. Holder, Mr.
McMillan, Sir Phillip Fysh, and Mr. Walker — but rather by way of
stating: the difficulties than of solving them. The debate closed on
31st March, when Mr, Barton replied, and the resolutions were
carried.

Although the resolutions were practically those which had been
debated in 1891, this discussion was by no means a waste of time. It
showed that the point of view had moved onward considerably in these
six years; and whilst on certain matters — such as the money Bill
question — which had been thoroughly threshed out in the former
Convention, there was little new light to be had, yet on matters which
had previously been touched slightly or not at all, the debates showed
a preparedness to come to closer quarters. It was now possible to
proceed to frame a new Bill on lines which tbe opinion of the new
Convention seemed to suggest.

Select Committees. — The next step was to frame a first draft of
the new Bill ; and for this purpose Mr. Barton moved resolutions for
apportioning all the members of the Convention among three Com-
mittees. Committee No. 1, for the consideration of constitutional
machinery and the distribution of functions and powers, was to consist
of four members from each delegation ; Committee Xo. 2, for the con-
sideration of provisions relating to finance, taxation, railways, and
trade regulations, of three members from each delegation; and Com-
mittee No. 3, for the consideration of provisions relating to the estab-
lishment of a federal judiciary, of two members from each delegation;
whilst the several Premiers were to be ex ojjicio members of each
Committee. The Finance and Judiciary Committees were to report
to the Constitutional Committee, which was then to prepare and
submit to the Convention a draft Constitution Bill. The various
delegations then selected their members for the different Committees,
which were formed as follows : —

Constitutional Committee. — New South Wales : Sir Joseph
Abbott, Mr. Barton, Mr. Carrutliers, Mr. O'Connor. Victoria : Mr.
Deakin, Mr. Isaacs, Dr. Quick, Mr. Trenwith. South Australia : Sir
Richard Baker, Dr. Cockburn, Sir John Downer, Mr. Gordon. 2'a*-
'mania : Mr. Brown, Mr. Douglas, Mr. Lewis, Mr. Moore. Western
Australia : Mr. Hackett, Mr. Hassell, Sir James Lee-Steere, Mr. Sholl.

Finance Committee. — New South Wales : Mr. Brunker, Mr.
Lyne, Mr. McMillan. Victoria : Sir Graham Berry, Mr. Fraser, Sir
William Zeal. South Australia : Mr. Holder, Mr. Howe, Mr. Solo-
mon. Tasmania : Sir Phillip Fysh, Mr. Grant, Mr. Henry. Western
Australia : Mr. Loton, Mr. Piesse, Mr. Taylor.

Judiciary Committee. — New South Wales : Mr. AValker, Mr.
Wise. Victoria : Mr, Higgins, Mr. Peacock. South Australia : Mr.

168 HISTORICAL INTRODUCTION.

Glynn, Mr. Symon. Tasmania : Mr. Clarke, Mr. Dobson. Western
Australia : Mr. James, Mr. Leake.

The Judiciary Committee finished its work on 6th April ; in the
other two Committees the debates were somewhat prolonged, and they
did not finish till 8th April. Then a Drafting Committee, appointed by
the Constitutional Committee, and consisting of Mr. Barton, Sir John
Downer, and Mr. O'Connor, prepared a Bill, which was submitted to
the Convention on 12th April.

The First Adelaide Draft. — Mr. Barton, who was chairman of
both Constitutional and Drafting Committees, brought the Bill up,
and on the motion to consider it in Committee he explained its pro-
visions categoricallv, with special reference to the points in which it
differed from the Bill of 1891.— Conv. Deb., Adel., pp. 432-59.

The framework and form of the Bill followed closely the Bill of
1891, which the draftsmen had " endeavoured to treat as reverently
as possible." To facilitate reference, however, the numeration of
clauses, instead of beginning afresh with every chapter, was made
consecutive through the whole Constitution. The chief differences
from the Bill of 1891 were as follows : —

A change in nomenclature had been made by substituting the
more expressive and more accurate term " States Assembly " for
" Senate." As to the constitution of the States Assembly, the im-
portant change — previously I'ecommended by the Bathurst Convention
— had been made, of substituting, for election by the Parliaments,
direct election by the people of each State as one electorate. The
States Assembly was to be composed of six members from each State.

The Parliament. — For the House of Representatives, in place of
the quota of one representative for every 30,000 people, alterable by
Parliament, there was a provision for calculating the quota in such a
way as to make the number of members as nearly as practicable twice
the number of the members of the States Assembly. The miiiimum
of representatives to which any State should be entitled was raised
from four to five. The duration of the House of Representatives was
extended from three to four years; and the salary of members of both
Houses was reduced from £500 to £400. The federal franchise in
each State was, " until the Parliament otherwise provides," to be that
of the State, but without plural voting. The power thus given to the
Parliament to supersede the State franchises (at federal elections) by
a federal franchise was a recognition, which the Bill of 1891 had. not
contained, that the national franchise was a matter of federal concern.
This principle was emphasized by the prohibition of plural voting.

The legislative powers of the Parliament were somewhat ex-
tended. New powers were given to make laws with respect to
astronomical and meteorological observations, fisheries in intercolonial
rivers, insurance, parental rights and the custody and guardianship of
infants. The sub-clause giving legislative power as to the status in
the Commonwealth of foreign and other corporations was extended to
cover the general subject of foreign and trading corporations. In
place of the sub-clause as to river navigation with respect to common
purposes was a new provision giving the Parliament a far wider
legislative power as to " the control and regulation of navigable

THE FEDERAL MOVEMENT IN AUSTRALIA. 169

streams and their tributaries within the Commonwealth, and the use
of the waters thereof." On the other hand, the control of railways
with respect to " transport for the purposes of the Commonwealth "
was, to prevent misconception as to the extent of the power intended
to be given, defined to appl j to '' military purposes " only.

Money 'Bills. — One of the most important changes of all was in
the powers of the Senate to amend Money Bills. In the Constitu-
tional Committee, the representatives of the two most populous
colonies had been outvoted, and the " compromise of 1891 " had been
set aside. The settlement reached in 1891 had been that the House
of Eepresentatives should have the sole power to originate bills
appropriating revenue or imposing taxation, and that the Senate
should have no power to amend Bills imposing taxation or appropriat-
ing the necessary supplies for the ordinary annual services, but might
instead suggest amendments in such Bills. The exclusive originating
power of the House of Representatives was now cut down to Bills
" having for their main object " the appropriation of revenue or the
imposition of taxation ; and the provision that the Senate should not
amend Bills imposing taxation was struck out altogether.

Responsible Government. — A further safeguard was introduced to
ensure the responsibility of Ministers to Parliament. In addition to
the provision that Ministers of the Commonwealth should be capable
of sitting in Parliament, it was expressly provided — following a pro-
vision of the Constitution of South Australia — that no Minister should
hold office for more than three months without a seat in Parliament.

Judiciary. — The judiciary clauses, though rearranged, were not
seriously altered. The term "The High Court of Australia" was
substituted for "The Supreme Court of Australia;" and the High
Court, instead of being left to the Parliament to establish, was estab-
lished by the Constitution itself. A new power was given to " invest
with federal jurisdiction " courts other than those established by the
Commonwealth. Under the Bill of 1891, the Parliament might pro-
vide that appeals which had previously been allowed from the State
Courts to the Privy Council should for the future be brought to the
Supreme Court of Australia ; the new Bill went further, and embodied
this transfer of appellate jurisdiction in the Constitution itself.

Finance. — The financial clauses were considerably altered. In the
first place, a new provision was inserted requiring uniform customs
duties to be imposed within two years after the establishment of the
Commonwealth. As regards the basis of distributing the surplus
revenue of the Commonwealth, three periods must be distinguished : —
(1) Before the imposition of uniform duties; (2) for five years after
the imposition of uniform duties; (3) after that period. For these
three periods the basis of distribution was to be as follows : —

(1) Before the imposition of uniform duties (that is, so long as
the provincial tariffs should remain in force) each State was to be
credited with the revenues collected in it from customs and excise
duties, and from ''the performance of the services and the exercise
of the powers" transferred to the Commonwealth. Each State was
to be debited with the expenditure of the Commonwealth in respect of
these duties, services, and powers, and also with a population share of

170 HISTORICAL INTRODUCTION.

the expenditure of the Commonwealth in the exercise of its original
powers. The balance due to each State was to be paid monthly.

(2) During the first five years after the imposition of uniform
duties, expenditure was to be charged in the same way, and revenue
was still to be credited to each State on the basis of its contributions.
But with a federal tariff and intercolonial freetrader the State in which
customs duty was paid would not necessarily be the State in which the
dutiable article was consumed; and it was therefore provided that,
notwithstanding the abolition of intercolonial tariffs, an account should
be kept of imported dutiable articles passing from one State to
another, and the duty chargeable thereon should be credited to the
consuming State, and not to the State in which the duty was collected.

(3) After that period, all expenditure was to be charged, and all
surplus revenue distributed monthly, in proportion to population.

The differences between this system and the system of 1891 were
shortly these : under the Bill of 1891 all expenditure was to be
charged in proportion to population, there being no distinction be-
tween expenditure in connection with transferred services and
expenditure in connection with original powers. Moreover,
under the Bill of 1891 the second period, instead of being fixed for
five years, was to last only " until the Parliament otherwise pre-
scribes j^' and though it was no doubt contemplated that Parliament
would ultimately prescribe the population basis, it was not imperatively
required to do so.

Other novel provisions of great importance were inserted, in the
direction of guarantees that the Commonwealth should be economical
in expenditure, and should return to the States a substantial share of
the surplus revenue. A clause was inserted that for four years after
the establishment of the Commonwealth {i.e., practically during the
prospective life of the first Parliament) the total yearly expenditure
of the Commonwealth in the exercise of its original powei-s and its
transferred powers respectively should not exceed certain specified
sums — which at this stage were left blank, but which were afterwards
filled in by the figures £300,000 for original powers, and £1,250,000
for transferred powers. (Con v. Deb., Adel., pp. 1053-6. The
sum of £1,250,000 was intended to represent, not gross expenditure,
but the excess of expenditure over revenue, other than taxation
revenue, derived from the transferred services.) This provision
had been suggested in the Finance Committee by Mr. lieid in
order to indirectly satisfy the demands of the colonies which
required a guarantee that their provincial finances would not be
unduly disturbed, and at the same time to avoid imposing on the
Commonwealth the necessity — Avhich would have been very obnoxious
to freetraders — of raising heavy taxation through the Customs. The
clause was supplemented by a further " guarantee " that during the
first five years after the imposition of uniform duties the aggregate
amount to be paid to the States for any year should not be less than
the aggregate amount returned to them during the year last preceding
the imposition of such duties. This was a compromise which, with
the help of the clause limiting federal expenditure, Mr. lleid and his
New South Wales colleajfues on the Finance Committee had succeeded

THE FEDERAL MOVEMENT IN AUSTRALIA. 171

in obtaining. Some of the other colonies had required the guarantee
to be for each State individually, instead of for all in the aggregate,
which would have thrown a far heavier obligation on the Common-
wealth ; but in view of the strong objections from New South Wales
the lesser guarantee had been accepted.

Equality of Trade. — In the clauses dealing with equality of trade,
the prohibition of preferences was practically the same as before ; but
in place of empowering the Parliament to annul State laws derogating
from freedom of inter-State trade, the new Bill contained an express
provision that any law of the Commonwealth or a State which had
the effect of derogating from such fi-eedom should be null and void.
Parliament was also empowered to establish an Inter-State Commission
to maintain and execute, upon railways and inter-State rivers, the
provisions of the Constitution relating to trade and commerce. The
members of the Commission were to be appointed in the same way
and on the same tenure as the Justices of the High Court, and the
Commission was to have such necessary powers of adjudication and
administration as the Parliament should give it : but with the im-
portant limitation that it was to have no powers in reference to any
raihvay rates or regulations unless they were " preferential in effect
and made and used for the purpose of drawing traffic to that railway
from the railway of a neighbouring State." This was the first definite
form of words proposed for the difficult purpose of forbidding unfair
competition by the railways of the several States, whilst reserving to
each State the control and general management of its own railway
system.

State Debts. — The clause empowering the Federal Parliament, with
the consent of the States, to take over the whole or part of the debts
of the States, was practically the same as in the Bill of 1891 ; though
it seems that some members of the Finance Committee interpreted
their instructions to the Drafting Committee as giving the power to
take over the debts without such consent. — Conv. Deb., Adel., p. 453,

State Governors. — In the chapter relating to "The States," the
clause requiring that all communications by the Governors of the
States to the Queen should be made through the Governor-General
was omitted ; as was also the clause empowerinor the State Parliaments
to determine the mode of appointment of the Governors. Both these
clauses were thought to be an unnecessary interference with the State
Constitutions.

Amendment. — Lastly, an important change was made in the mode
proposed for amending the Constitution. Every amending law was
first to be passed, as before, by an absolute majority of each House of
the Parliament ; but it was then to be submitted, not to State Conven-
tions, but to the electors of the several States, and was not to be pre-
sented for the Royal assent unless approved by the electors of a
majority of States, and unless the people of the approving States
were also a majority of the people of the Commonwealth.

Mr. Barton haviug expounded the draft Bill, and explained that
it represented not necessarilv his own or his co-draftmen's views, but
resolutions of the several Committees, no time was lost in general
debate, but the motion to go into Committee was carried, and Sir

172 HISTORICAL INTRODUCTION.

Richard Baker, who had already been appointed Chairman of Com-
mittees, took the chair amidst cheers.

The Bill in Committee. — Proceedings in Committee opened with
a motion by Sir John Forrest to postpone all clauses up to clause 52
in order that the Money Bill clauses might be taken first. The West
Australian delegates, on account of a general election in that colony,
would have to leave on 14th April. The burning question of the
power of the Senate to deal with Money Bills was practically a battle
between New South Wales and Victoria on the one hand, and the
three less populous colonies on the other. As the Convention was
constituted, the latter were in a majority ; in the Constitutional Com-
mittee they had gained the day, and they could do so again in Con-
vention. But with the West Australian delegates absent, the tables
would probably be turned ; hence their desire to settle the question at
once. The propriety of taking this course had already been discussed
some days before, when it had become clear that a large majority of
the Convention w^ould support Sir John Forrest's motion, and it was
now carried with but little protest.

Money Bill Clauses. — Then, on 13th April, commenced the last
great debate on the Money Bill clauses — a debate which, though it
occupied but two days, was certainly the most momentous in the Con-
vention's whole history. It established the recognition by the Con-
vention of the fact that it was a negotiating, and not a legislative,
body ; that the decision of a majority of representatives within that
Chamber went for nothing unless it were a decision which was accept-
able to the people of all the colonies. Had that fact and its conse-
quences not been recognized, the present prospects of Federation must
have been wrecked, and at the outset there seemed some danger that
this might happen. Sir John Forrest, for the small States, announced
cheerfully and often that "we have a majority;" and it seemed for a
time that the equal representation of the colonies in the Convention —
a necessary principle in an assemblage of contracting States — would
exercise an undue influence on the form of the Constitution. The
recognition of the fact that they must defer to the wishes of majorities
outside marked the turning point of the Convention, and the entry of
the really federal spirit of compromise — a spirit which thenceforward
grew, slowly but steadily, through all the sittings of the Convention,
and spread from the Convention to the people.

The real debate began with an amendment by Mr. Reid to insert
a prohibition against the Senate amending " laws imposing taxation,"
and thus revert to the "compromise of 1891." He was prepared to
give the Senate — "not as an antiquated power, never to he used,
but as a real living power " — the right of rejection ; but the power of
moulding finance must be with the House of Representatives. Sir
George Turner followed, and said emphatically that he had gone a
long way in conceding equal representation in the Senate, and that to
give the Senate the power of amending taxation Bills was a proposition
which he dare not submit to the people of Victoria, and which, if he
did submit it, they would never accept. Sir John Downer, on the
other side, argued that he was only asking for terms which existed in
every legitimate Federation in the world. Mr. Kingston was the first

THE FEDERAL MOVEMENT IX AUSTRALIA. 173

to stand out from his South Australian colleagues, and adhere to the
" compromise of 1891," which had been deliberately arrived at after
deep consideration, and any departure from which would imperil the
cause of Federation. Mr. McMillan, on the other hand, differed from
his New South Wales colleagues, on the ground that a revising
Chamber, without the amending power, is ineffectual. With these
exceptions the ranks of the opposing colonies seemed unbroken, till ,5^
Mr. Glynn announced that as a representative, and not a delegate, he
deemed it his duty to give way. Mr. Carruthers carried the war into
the enemy's camp, proposed to deny the Senate even the power of
suggesting amendments, and withdrew his assent to equal representa-
tion in the Senate. Later on Mr. Henry, the last speaker of the day,
announced his secession from the fast dwindling majority, and thought
that he could support Mr. Keid's amendment without emperilling State
rights. Xevertheless, had the vote been taken that evening, the
amendment would assuredly have been defeated. But Mr. Barton,
thanks to a pro^ddential catarrh, induced the Committee to report
progress, and a night's reflection turned the tide. When the Conven-
tion met next morning the battle was practically won, and Mr. Barton
clinched the victory by a forcible appeal to the representatives of the
small States not to take a step which the people of the two great
colonies would regard as an ultimatum, and which would inevitably
imperil the chances of union. Mr. Kingston supported him, and
scored a palpable hit by pointing out that the Parliament of South
Australia, when dealing in Committee with the Bill of 1891, had raised
no objection to the '"' compromise,'^ and that there had never been any
indication that the people disapproved of it. Two Tasmanians, Mr.
Brown and Mr. Lewis, in the interests of Federation, declared for the
amendment; and Mr. McMillan, for the same reason, determined to
vote with his colleagues. On division, Mr. Eeid's amendment was
carried by 25 votes to 23.

The Federal Parliament. — The name "States Assembly" had
already been rejected in favour of the more familiar "Senate;" and
now Mr. Higgins proposed an amendment providing that each State
should be entitled to a number of Senators to be determined by a
sliding scale, intermediate between equal and proportional representa-
tion. His argument was that " State rights " were protected by the
limitation of federal powers in the Constitution, and that in the defined
sphere of national legislation State lines ought to be obliterated. To
this it was replied that the true justification of equal representation
was, not that it was a theoretically ideal principle, but that it was a
matter of terms and conditions between equal contracting parties.
The amendment was defeated by 32 votes to 5. Soon afterwards Mr.
Solomon proposed a similar sliding scale for the House of Representa-
tives, but this was promptly negatived.

The question of the federal franchise raised some discussion.
Mr. Holder first proposed an amendment to give every adult man and
woman a vote ; but this was criticized as being a rash experiment, and
an attempt at dictation which would probably be resented in some of
the colonies. It was negatived by 23 to 12. He then, by way of
compromise, proposed that "no elector now possessing the right to

174 HISTORICAL INTRODUCTION.

vote shall be deprived of tliat right ^' — the object being to ensure that
the Federal Parliament, if it should exercise its powers of fixing a
federal franchise, should not disfranchise the women of South Aus-
tralia. This was strongly opposed, not only as being too wide, but
also as preventing the Federal Parliament from framing a uniform
franchise except by including women's suffrage. Mr. Holder even-
tually withdrew this in favour of a provision — drafted^ though not
approved, by Mr. Barton — which was carried on division by 18 votes
to 15, and which now forms sec. 41 of the Constitution. In effect, it
guarantees to every State elector a federal vote; so that the Federal
Parliament, though it can give the right to vote at federal elections,
cannot withhold that right from any elector of a State.

In the ' legislative powers of the Federal Parliament several
changes were made. '^ Telephonic and other like services " were added
to telegraphs ; but an amendment by Mr. Holder, to limit the postal and
telegraphic power to services " without the boundaries of the Com-
monwealth"— reserving to the States the control of internal and
inter-State services — was defeated by 30 votes to 5. The power as to
river fisheries was omitted. An effort by Mr. Higgins to insert a new
sub-clause dealing with "conciliation and arbitration for the preven-
tion and settlement of industrial disputes extending beyond the limits
of the State concerned" was negatived by 22 votes to 12.

The River Question. — The chief debate on Legislative powers Avas
in connection with the sub-clause, inserted by the Constitutional
Committee, " The control and regulation of navigable streams and
their tributaries within the Commonwealth and the use of the waters
thereof." Mr. Gordon, who was responsible for the sub-clause, pro-
posed to cast it into a somewhat less sweeping form by restricting it
to the Rivers Murray, Darling and Murrumbidgee, and their tribu-
taries.

The debate which followed, and which was only preliminary to a
keener and more prolonged debate at the Melbourne sitting, needs for
its explanation a short statement of the peculiarities of this great
river system, and of the interests of the several colonies in it. The
one great river system of Austi'alia extends through four colonies
— Queensland, New South Wales, Yictoriai, and South Australia. Its
watershed embraces almost the whole of New South Wales, except
the narrow strip east of the dividing range ; whilst some of the sources
of the Darling are in Queensland, and some of the sources of the
Murray are in Victoria. The lower part of the united stream runs
for some hundreds of miles through South Australia to the sea. Thus
the chief catchment area is in New South Wales, and the outfall in
South Australia. The peculiarities of these rivers, and the causes
which affect their flow, are as yet very imperfectly understood. Tiie
Darling is intermittent ; sometimes a broad navigable stream, stretch-
ing into immense backwaters and billabongs ; sometimes a mere chain
of waterholes. It is fed by the irregular tropical rainfalls of Queens-
land, and by the lighter and still more uncertain rains of New South
Wales. The Murray has a more reliable source in the snows of the
Great Divide, and is generally navigable as far as Echuca. In a
country of vast distances, scanty rainfall, and unlimited thirst, these

THE FEDERAL MOVEMENT IN AUSTRALIA. 175

rivers are of immense importance both as highways of commerce and
as channels for the water necessary for the development and settle- .
ment of the land ; whilst the problem of their best utilization for )
either purpose involves vast schemes and undertakings.

Of the colonies represented in the Adelaide debate, Tasmania
was a disinterested onlooker, Victoria was concerned to a certain
extent, and the real issue was between South Australia as claimant i
and Xew South Wales as defendant. South Australia's interest was
mainly in the maintenance and improvement of a navigable highway
of the utmost importance to her trade with Xew South Wales and
Victoria ; whilst New South Wales was impressed with the supreme
importance of the waters of the rivers for the development of her
territory. Extensive irrigation works in Victoria, and great conserva- '
tion schemes in New South Wales, had alarmed South Australia ; '
there had been much correspondence between the Governments and
a Royal Commission in Adelaide, but South Australia's claim to
definite riparian rights had not received much recognition.

Mr. Gordon's -contention was that riparian rights between
neighbouring States were based on natural justice, and recognized by
international law; and that the great river system of Australia, withf
all its tributaries, could only be dealt with justly by federal control. '
There were riparian rights between States as well as between indi-
viduals, and they ought to be defined by the Federal Parliament.
Mr. Carruthers, the New South Wales Minister for Lands, pointed
out that the Australian rivers were unique, and English riparian laws
utterly inapplicable. New South Wales was responsible for the
settlement of territory, and could never be persuaded to give up con-
trol of the water. Mr. Gordon protested that he only asked for " a .
tribunal ;" but Mr. Deakin pointed out that there were no settled '
principles which a tribunal could apply, and urged " the unwisdom of
endeavouring to include in the Federal Constitution the settlement of
a problem such as this — the acquirement, in point of fact, under this
Constitution of a legal right where at present no legal right exists or
is enforceable." The New South Wales delegates were prepared to
grant federal control, for purposes of navigation, of rivers forming a
boundary between States — practically, that is, of the Murray ; but
they protested against the Federal Government being able to impound
waters wholly within a colony — against New South Wales being made,
in Mr. Reid's phrase, " a catchment area for South Australia." Sir
John Downer and Mr. Symon were prepared to accept this, and Sir
John Downer moved an amendment to make the sub-clause apply
only to " rivers running through or on the boundaries of two or more
States, so far as is necessary to preserve the navigability thereof."
Mr. Reid, however, objected to the phrase " preserve the navigability,"
as being dangerous and ambiguous. To regulate navigation was
one thing, to " preserve navigability " another ; and in the case of
rivers now intermittently navigable might mean anything. Sir John
Downer's amendment was negatived by 24 votes to 10, and the sub-
clause was then negatived by 25 votes to 10.

Mr. Gordon then proposed a new sub-clause, " The control of the
navigation of the river Murray, and the use of the waters thereof."

176 HISTORICAL INTRODUCTION

An amendment by Mr. O'Connor, to omit the words relating to the
use of the waters, was negatived, and an amendment by Mr. Oar-
ruthers to add " from where it forms the boundary between Victoria
and New South Wales to the sea/' was carried. In this form the
sub-clause was agreed to. The decision of the Adelaide Convention
was therefore to give no express federal control of rivers generally,
but only of the Murray from where it first forms an inter-State
boundary.

Railways. — Doubts had already been expressed whether the sub-
clause empowering the Federal Parliament to deal with matters
referred to it by the States would extend to the taking over of the
railways ; and accordingly on re-consideration sub-clauses were added
by Mr. McMillan to allow the Commonwealth^ with the consent of a
State, to take over the railways of the State on terms arranged be-
tween them, and also to undertake railway construction and extension
with the consent of the States concerned. But an amendment by
Mr. Walker, to include the railways among the departments taken
over at the outset, was negatived by 18 to 12.

The Finance Clauses. — In the financial clauses some important
amendments were made, though the debates were short. This part of
the Bill was reached on 19th April; and on the clause dealing with
^ \-\ the distribution of the surplus, Mr. McMillan explained the difficulties
S A^ which the Finance Committee had had to meet. These difficulties
° arose out of the widely different fiscal policies of the colonies. Three
of them were, in different degrees, distinctly protective; Western
Australia, being at present chiefly engaged in the mining industry,
was in the abnormal position of raising nearly all her revenue through
the customs; whilst New South Wales was absolutely freetrade.
Until the imposition of the uniform tariff, the distribution of the
surplus would be chiefly a matter of book-keeping, and would present
no special difficulties. The question was how to introduce the
uniform tariff without dislocating the finances of the States. If
the debts were taken over, or if an equivalent minimum return of
surplus to the States were guaranteed, New South Wales would be
placed in a difficult position, because this would practically mean dic-
tating the fiscal policy of the future. In any case, there must be a
federal tariff which would considerably increase customs duties for the
people of New South Wales ; and for the first few years, till trade had
time to adjust itself, New South Wales would pay a disproportionate
amount through the customs, and would lose heavily by a per capita
system of distribution. Therefore the Finance Committee had been
driven to adopt for five years " this detestable system of book-keeping"
— which, though perfectly fair, would be "a great nuisance." He
believed that the only way was to leave the problem of distribution to
the Federal Parliament as " the great negotiator."

Mr. Holder followed, and developed the question from the point of
view of the small States. The small States did not know how, without
the customs revenue, they could make both ends meet ; and his point
was — " while we would like from the point of view of the Federal
Treasurer to leave him free, we cannot from the point of view of the
States." They could not leave the Commonwealth free to adopt a

THE FEDERAL MOVEMENT IN AUSTRALIA. 177

purely freetrade tariff which would destroy the customs revenue and
ruin the States. With a Senate strong enough to insist on the
interests of the small States, he would have trusted the Federal Par-
liament; as it was, he preferred to tie the hands of the Federal
Treasurer rather than risk the solvency of the States. He believed
that ultimately the "per capita system would be fair, and he would like
meanwhile to see some plan which would obviate the objectionable
book-keeping. As to the " guarantee " question, he objected strongly
to the clause limiting expenditure, and made a suggestion — which
contained the germ of what was afterwards known as the ''Braddon
clause " — that the Commonwealth should return to the States a fixed
percentage, say 70 per cent., of the customs revenue collected.

Sir George Turner then took up the discussion, and objected to
Mr. McMillan's suggestion as simply shelving the difficulty and giving
out to all Australia that it was insoluble. To secure support for the
Bill, they must propound something definite. There must be a fixed
minimum amount to be returned. He would like to see, in place of
the guarantee of an aggregate amount, a guarantee to each State of
an amount equal to what it received before the uniform tariff. They
might fix a percentage to be returned, in order to guard against
federal extravagance, and fix a minimum return, in order to guard
against an insufficiency of federal taxation. As to the basis of distri-
bution, he too did not like the book-keeping, and would welcome some
arrangement to dispense with it.

Mr. Reid came last, and argued that a per capita basis would, for
some years, mean a heavy loss to Xew South Wales, whilst industry
and commerce were adjusting themselves to the new conditions. At
the same time, he was anxious to abolish the book-keeping system as
soon as possible, and would agree to a sliding scale, ending in the
per capita system after five years. He objected to fixing any minimum
return, or to loading the Commonwealth with the debts. Xew South
Wales was prepared, with the odds against her, to trust the fiscal
question to the Federal Parliament ; she was not prepared to give the
Commonwealth burdens which would compel a high tariff. Mr. Holder,
Sir George Turner, and Mr. Reid having expressed a willingness to
confer in order to devise a scheme for dispensing with the book-
keeping system, Mr. Barton secured the postponement of the financial
clauses in order that the Treasurers might consult together on the
subject.

On 21st April, the debate was resumed. First of all Sir Philip
Fysh moved an amendment providing that in place of the " guarantee"
to the States of an aggregate minimum, there should be a guarantee
to each individual State of the amount it received before the unifonn
tariff, Mr. Reid opposed this stoutly as involving a gigantic system
of taxation for the purpose of meeting the possible requirements of
one small State, Sir George Turner, who had previously favoured
this plan, admitted the force of the Xew South Wales arguments, and
the amendment was negatived on the voices.

Then Mr. Reid brought up the proposal of the Treasurers for
shortening the book-keeping period. This wa« based on a sliding
scale, by which the apportionment of revenue, beginning on the book-

178 HISTORICAL INTRODUCTION.

keeping or contribution basis, would slide in five years to a per cajnta
basis. Accounts were to be kept on the borders for one year only
after the imposition of a uniform tariff. That year was to be taken as
a test of the inequalities of contribution; and on the assumption that
those inequalities would steadily decrease, and would disappear in five
years, it was provided that the apportionment of revenue should scale
down in five years from the basis shown by the test year to a per
capita basis.

This plan, which had been chiefly worked out by Mr. Holder, was
strongly recommended to the Convention, and was adopted with very
little discussion. The result was that the preliminary basis, for the
period prior to the uniform tariff, remained unaltered; the final basis,
after five years from the uniform tariff, also remained unaltered (see
p. 169, supra); but for the intermediate period, instead of five years'
book-keeping on the borders, there was to be only one year's book-
keeping, followed by four years' scaling down from the contribution
basis, which ruled before the uniform tariff, to the per capita basis
which was to rule ultimately.

The only other important financial discussion was in connection
with taking over the public debts of the States. The clause as
submitted to the Convention provided that the Parliament might, with
the consent of any State, take over the whole or any part of the public
debt of the State. Sir George Turner, with most of the Victorians,
thought it ought to be compulsory to take over all the debts ; but in
view of Mr. Reid's strong objection to this course, as dictating a higli
tariff, he did not press this proposition. He still urged, however, that
the Parliament ought to take over all or none, and ought not to have
the power of favouring some States in preference to others. The
arguments against compulsory federalization of debts were two :—
(1) That it would amount to a permanent endowment of the States,
and would thus dictate a high tariff policy ; (2) that it would make a
present of the federal credit to the bond-holders, and prevent the
Federal Treasurer being able to bargain for a profitable conversion
before maturity. On Sir George Turner's motion, the words requiring
the consent of the States, and also the words empowering the Parlia-
ment to take over " any part " of the debt of a State, were struck out.
In order, however, to giye a wider discretion to the Parliament and at
the same time prevent unequal treatment of the States, it was pro-
vided that a " ratable proportion " of the several debts, on a popula-
tion basis, might be taken over. The application of the clause was
also restricted to debts "existing at the establishment of the Common-
wealth." The clause as passed, therefore, did not compel the taking
over of the debts, but empowered the Federal Parliament, at its own
discretion, to take over the debts of all the States as existing at the
establishment of the Commonwealth, or a ratable proportion thereof.

Railway Rates. — A someAvhat indefinite debate took place on the
subject of preferential rates. On the clause prohibiting derogation
from freedom of inter-State trade, Mr. Gordon moved an amendment
trying to define with some minuteness an unfair preference. The test
by which he proposed to determine the fairness of a preferential rate
was to enquire whether or not the trade attracted by that particular

THE FEDERAL MOVEMENT IN AUSTRALIA 179

rate was or was not profitable ; but the proposal was overwhelmed
with criticism and was ultimately withdrawn. In the clause dealing
with the powers of the Inter-State Commission, the Victorians ob-
jected to the prohibition of preferential rates made *' for the purpose
of drawing traffic from the railway of a neighbouring State," on the
ground that it was one-sided, and tied the hands of Victoria in com-
peting for the Riverina trade, whilst it left Xew South Wales free.
The problem was a most difficult one, involving important commercial
and political interests. Under the provincial system, each colony had
reinforced its barrier of custom-houses by a war of railway rates and
railway policies. This was especially the case between Xew South
Wales and Victoria. Each colony had built its railway lines and
arranged its rates with a view to concentrating as much trade as
possible in its own capital. Xew South Wales, having an immensely
larger area than Victoria, had tried to gather into Sydney all the
trade of that area, and had built octopus railways into the south-
western or " Riverina " district — taking care not to extend them quite
to the Victorian border, lest some of the trade might flow the wrong
way. A large area of Xew South Wales, however, is geographically
nearer to Melbourne than to Sydney ; and Victoria ran numerous
lines to the border in order to tap the trade of these outlying dis-
tricts of Xew South Wales. Then began a system of frankly com-
petitive rates ; Victoria offering special reductions — in some cases
amounting to 66 per cent. — to goods coming from across the border,
while Xew South Wales endeavoured to retain the trade by prohibitive
rates for produce travelling towards Melbourne, and by extremely
tapering long-distance rates for produce travelling to Sydney. This
'' cut-throat " competition between the two railway systems was more-
over complicated by the competition of both with river steamers
trading to South Australia. As regards the " long-haul " rates in
Xew South Wales, there was also the difficulty that tapering rates for
long distances are required by the soundest principles of railway
management ; and it seemed impossible to ascertain the precise point
at which it could be said that a differential rate became preferential
and unfederal in character, or the precise degi'ee of tapering which
was necessary for the development of territory, and in the interests of
the producer and the carrier alike. The only obvious test — that of
the direct profitableness or unprofitableness of the rate to the carrier
— was inapplicable because the carrier, being the Government, had
public and political interests which might justify it in running the
railways at a loss for the public benefit.

This war of railway rates had resulted in considerable bitterness
between the colonies, and considerable loss to the railways and the
public ; and everyone was agi-eed that the Constitution ought, if
possible, to contain some power of regulating the competition. Sir
George Turner and his colleagues, however, feared that the particular
provision in the Bill would prevent Victoria from competing to draw
trade from beyond her boundary, whilst it would allow Xew South
Wales to compete to retain trade within her boundary. In other
words, they feared that it recognized the right of each colony to
charge preferential rates with a view to drawinar the trade from its

180 HISTOKICAL INTRODUCTION.

own outlying territory to its own ports ; that instead of being miitual,
it was anti-federal, inasmuch as it restricted each colony to its own
produce ; and that it thus favoured the long distance railways of New
South Wales at the expense of the short distance railways of Victoria.
The answer on behalf of New South Wales was that the clause was
mutual so far as inter-State traffic was concerned, and that the Consti-
tution ought not to interfere with the purely internal trade of a State.
The arguments may be summed up thus: The Victorians — and with them
the South Australians — claimed that "■ trade should flow in its natural
channels." The New South Wales representatives did not dispute
this as an abstract proposition, but objected to extending the federal
control to any trade that was not " inter-State trade/' and claimed the
right of each State to control its internal trade, subject only to the
condition that freedom of trade should not be derogated from. There
was no attempt to justify the policy of Victoria in carrying New
vSouth Wales goods at cheaper rates than her own, nor the policy of
New South Wales in charging prohibitive rates on goods destined for
Victoria. The real question as to which opinion was divided was
whether a limit ought to be put to the right of New South Wales to
taper her long-distance rates. Victoria objected to giving up her ad-
mittedly anti-federal weapon unless New South Wales were disarmed
also ; New South Wales argued that her tapering long-distance rates,
though they might indeed be used as an anti-federal weapon, were an
essential means to the settlement of her land and the development of
her resources. No definite solution of the difficulty was arrived at;
but on Sir George Turner's motion the objectionable limitation was
struck out, and the powers of the Inter-State Commission were left
unhampered by any definite instructions.

Amendment of the Constitution. — In the clause providing for the
amendment of the Constitution, an important change was made. In
place of the provision requiring (1) that the electors of a majority of
the States should approve the proposed law, and (2) that the people
of the States so approving should be a majority of the Commonwealth,
it was provided that the law should be approved by (1) the electors of
a majority of the States, and (2) a majority of all the electors voting.
A difl&culty, however, arose with regard to the women's suffrage in
South Australia, which, if the votes in the different States were added
together, would give double influence to that State (assuming that
there were as many women voters as men). To meet this, it was pro-
vided that the votes of States in which adult suffrage prevailed should
be halved before being added to the others.

Deadlocks. — The question of the insertion of a clause for the
solution of deadlocks was not ignored. During the sitting, suggestions
to this end had been circulated by several members; one by Mr.
O'Connor, providing for a joint sitting of the two Houses ; one by Mr.
Carruthers to a similar effect; one by the Premier and Attorney-
General of Victoria providing for a dual referendum; one by Mr.
Wise, providing for a consecutive dissolution, first of the House of
Representatives, and then of the Senate; and one by Mr. Higgins
giving the Governor-General a general power to dissolve both Houses.
When the stage was reached for the insertion of new clauses, Mr.

THE FEDERAL MOVEMENT IN AUSTRALIA. 181

Wise moved his proposal providing that if the House of Representa-
tives should pass a Bill to which the Senate would not agree, and if
the Governor-General should on that account dissolve the House of
Representatives, and if after the dissolution the House of Representa-
tives should again pass the Bill and the Senate again disagree, the
Governoi'-General might dissolve the Senate. He pointed out that
his two objects were (1) to preserve the independence of the Senate in
all matters affecting State interests, and (2) to secure the dominance
of the popular vote on all party questions which did not place the
interests of one group of States against those of another. Mr. Barton
argued that deadlocks had in fact nearly always arisen from attempts
to " tack " matters of general legislation on to a money Bill, or to lump
different kinds of taxation together in one Bill ; and that the Consti-
tution, by prohibiting this, had already made, adequate provision
against deadlocks. Mr. O'Connor had also come round to this opinion,
and preferred to leave the Bill as it stood. Mr. Trenwith disagreed
with this view, and argued that though the deadlocks due to " tack-
ing " were the most acute and striking, there were frequent " dead-
locks " consisting in the refusal of one House to pass matters of
progressive legislation. The fact is that in this debate the word
deadlock assumed a new and extended meaning, which, in subsequent
discussion of the question, it has since retained. A " deadlock "
originally meant a disagreement as to a Money Bill or some vital
measure, the failure of which would paralyze the machinery of Govern-
ment; but it now came to be used — for want of a better word — to
describe any disagreement between the Houses on any matter of legis-
lation. It was as yet by no means generally recognized that for
" deadlocks," in this wider sense, any cure was necessary or desirable;
and fears were expressed lest a clause intended to cure deadlocks
should in fact have the effect of creating them.

Mr. Higgins objected to Mr. Wise's proposal because it enabled
the Senate, without risk to itself, to force the House of Representatives
to a "penal dissolution;" and he moved an amendment to enable both
Houses to be dissolved together in the first instance. This amend-
ment was strongly opposed, especially bv the representatives of the
small States, who thought that it would allow undue pressure to be
brought to bear on the Senate by the Government of the day. Mr.
Higgins' amendment was defeated by 24 votes to 7, and the original
proposition was then defeated by 19 to 11.

Mr. Isaacs then moved a series of clauses which had already been
circulated by Sir George Turner and himself. They applied equally
to both Houses, and provided that in the event of a disagreement
about any Bill, the House in which the Bill originated might resolve
'* that the proposed law is of an urgent nature," and might transmit it
with any amendments agreed to by both Houses to the other House

j for further consideration. If within a certain time it were not passed
by the latter House, the oriofinatino: House migrht resolve that it be

I referred to the direct determination of the people. The vote was to
be taken in each State separately, and if the Bill was afl&rmed by " a
majority of States containing also a majority of the population of the
Commonwealth," it was to be presented for the Royal assent as though

182 HISTORICAL INTRODUCTION.

it had passed both Houses. Mr. Isaacs claimed that this scheme gave
ample opportunities for reconciling differences^ and did not endanger
either the independence of the Houses or the responsibility of the
Ministry. The real debate had taken place on Mr. Wise's clause, and
the new proposal was at once negatived by 18 votes to 13.

All the mechanical devices subsequently discussed — the joint
sitting, the consecutive or simultaneous dissolution of both Houses,
and the referendum — were thus placed before the Convention at its
Adelaide sitting. The refusal to adopt any of them at that stage was
not meant as a final decision, but rather as an indication that the Con-
vention was not yet satisfied that any provision was necessary, and at
all events was not prepared to commit itself to any of the numerous
alternative schemes. The whole question therefore remained open for
future consideration.

Adjournment. — The Bill was reported to the Convention on 22nd
April, and next day the report was adopted. In the ordinary course
of events, the Convention would then have adjourned, for not more
than 120 days, in the terms of the Enabling Acts; but here a difficulty
had arisen. The Premiers were all about to visit England for the
Queen's Diamond Jubilee celebrations, and it was practically impossible
to hold the adjourned sitting before September. The device was
therefore adopted of moving that the Convention adjourn till 5tli May,
and that '' at its rising on that day it do fm^ther adjourn till Thursday,
2nd September, at 12 o'clock noon." Accordingly on 5th May — all
the visiting delegates ha.ving long since departed — the Acting-Presi-
dent took the chair, and, having solemnly but ineffectually ordered
the bells to be rung for a quorum, declared that the Convention stood
adjourned till noon on 2nd September, at Parliament House, Sydney.

(11) CONSIDERATION BY THE LEGISLATURES.

The next step under the Enabling Acts was the consideration of
the Draft Constitution by the Legislatures of the several colonies,
during the statutory adjournment of the Convention.

New South Wales. — The discussion was begun by the Legis-
lative Assembly of New South Wales on 5th May, 1898, Mr.
Carruthers, in the Premier's absence, being in charge of the measure.
The proceedings began with a protracted general debate, of a some-
what monotonous character, which revealed many critics of the Bill,
but few friends. The points most forcibly attacked were the equal
representation of States in the Senate, the powers of the Senate with
regard to Money Bills, and the financial clauses generally. The
financial clauses had already been adversely criticised in a series of
articles by Mr. R. L. Nash, financial editor of the Sydney Daily
Telegraph. The gist of his argument was that Federation under the
Bill meant added burdens and no savings ; that to meet the new ex-
penditure and the remission of intercolonial duties there would have
to be a great increase of duties on oversea imports ; that in Victoria,
South Australia, and Tasmania there was practically no reserve power

THE FEDERAL MOVEMENT IN AUSTRALIA 183

of taxation ; and consequently that Xew South Wales would have to
pay the whole cost of Federation, adopt a fiscal policy of which she
disapproved, and submit to additional taxation to the amount of
£1,500,000 — of which possibly £1,000,000 would be returned to her,
to be spent extravagantly. His conclusion was that the only solution
would be to provide for savings at least equal to the added expendi-
ture, and that this could only be effected by the federation of the
debts and railways. These forecasts had been based to some extent
on a set of calculations placed before the Convention by the Govern-
ment Statistician of Xew South Wales, which took as their basis the
imports of the several colonies under their existing and widely-differ-
ing tariffs, and deduced the amounts of revenue that would be contri-
buted by each colony, assuming the imports remained the same, by
applying to them first a uniform tariff on the lines of the Victorian
tariff, then a uniform tariff on the lines of the South Australian tariff,
and so on. The basic assumption, that the amount of imports would
not be affected by the change in the import duties, had already been
attacked in the Convention, and was demolished by Mr. Edward
Pulsford in a series of articles in the Sydney Morning Herald, which
were afterwards laid on the table of the Convention at the session.
The supporters of the Bill denied that the estimated contributions of
the colonies, thus arrived at, were even approximately correct. They
also denied the assumptions that there would be no savings under the
Bill, and that the other colonies were already taxed to the uttermost ;
and maintained that when the necessary coiTections were made the
groundwork of these gloomy predictions Avas cut away. The argu-
ments of the critics, however, carried great weight, and formed the
backbone of the Parliamentary opposition to the Bill. The general
debate dragged on until 24th June, and on 7th Jidy the detailed dis-
cussion began.

The chief amendments suggested by the Assembly followed the
lines already indicated. An amendment to abolish the Senate alto-
gether received little support ; but the principle of equal representation
was negatived, at an early hour in the morning, by a decisive vote of
59 to 4. In its place was inserted a provision for proportional repre-
sentation, with a minimum representation, for any State, of three
members. The exclusive originating power of the House of Repre-
sentatives was extended to all Appropriation Bills, irrespective of
their " main object," and the power of the Senate to suggest
amendments in Money Bills was struck out. The limitation of fedei-al
expenditure, and the guarantee of the return of a minimum aggregate
surplus, shared the same fate ; and the elaborate provisions for the
distribution of the surplus were replaced by a clause leaving the
whole question to the Federal Parliament. The clauses providing for
an Inter-State Commission, and for taking over the debts, were struck
out. A sweeping " deadlock " clause was inserted, providing that
either House, in the event of a disagreement, might submit the dis'
puted measure to a " mass referendum," at which a majority of all
the electors voting should decide. Amendments of the Constitution,
after having been passed by the Parliament, were to be submitted to
a similar referendum, without regard to State majorities.

184 HISTORICAL INTRODUCTION.

In the Legislative Council, where Mr. Barton had charge of the
Bill, the opposition was even more pronounced. By way of a general
protest against State powers in the Constitution, and an affirmation
of a more complete unification, after the Canadian model, the word
" Commonwealth '' was replaced by Dominion, and the word "federal"
was ruthlessly excised throughout. The Assembly's amendment as to
Senate representation was adopted; but the Council, with an eye to
the dignity of Upper Houses in general, left intact the poAver of the
Senate to suggest amendments in money Bills. The destructive atti-
tude of the House, however, was plainly shown in connection with the
fi,nancial parts of the Bill. The taxing powei^s of the Federal Parlia-
ment, through the customs or otherwise, were excised; in Chapter IV.
nearly the whole of the financial provisions were omitted, leaving the
Bill a blank. At this, Mr. Barton and Mr. O'Connor disclaimed all
responsibility for the proceedings, and left the Chamber; but the
Council protested the integrity of its intentions, and went on with its
work of disappi'oval. It insisted that Sydney should be the federal
capital ; but on the subject of deadlocks — true to the traditions of an
Upper House — it made no suggestion.

Victoria. — Criticism in the other colonies was much more moder-
ate. In Victoria, both Houses accepted equal representation in the
Senate, but suggested single-member electorates in preference to
having each State as one constituency. The money bill clauses, even
more emphatically than in New South Wales, brought out the par-
ticular bias of each Chamber. The Assembly threw out, not only the
Senate's power of suggesting amendments, but also the prohibitions
against tacking; whilst the Council went so far as to claim for the
Senate the full power of amendment. The Assembly struck out the
plan for the distribution of the surplus, and objected to giving the
Federal Parliament exclusive control of bounties; but otherwise it
accepted the financial clauses. The Council contented itself with a
general resolution " That, in the opinion of the Legislative Council of
Victoria, the finance and trade proposals of the Commonwealth Bill
require further enquiry and consideration." The Victorian complaint,
however, was precisely the opposite to that of New South Wales ; the
"guai-antee" for the return of revenue was thought insufficient, and
there was a strong feeling in favour of an immediate per capita distri-
bution of revenue. The Legislative Council — like that of New South
Wales — left the matter of deadlocks alone; but the Assembly suggested
three distinct schemes: — (a) That if the Senate disagreed with a Bill
sent up by the other House, and if " on that account " the House of
Representatives were dissolved, and if the Bill were again sent up and
disagreed with, the Governor-General might dissolve the Senate ; (6)
that if the Senate disagreed with any Bill sent up to it, the Governor-
General might dissolve both Houses; (c) a modification of the Turner-
Isaacs Adelaide proposition for a dual referendum, the two majorities
required being (1) a majority of the electoral districts for the House
of Representatives, and (2) a majority of all the electors voting. With
regard to the amendment of the Constitution, the Assembly suggested
that, in case of disagreement, either House without the concurrence
of the other might submit an amendment to the electors; and also

THE FEDERAL MOVEMENT IN AUSTRALIA. 185

suggested that the final paragraph, forbidding certain amendments
without the consent of the States concerned, should be omitted.

South Australia. — In South Australia the Assembly carried an
amendment for the election of federal representatives on the basis of
" one adult one vote." The Assembly asked for the federal control of
rivers to be extended to the " tributaries " of the Murray, whilst the
Council asked for its extension to the " Darling, Murray, and Mur-
rumbidgee," specifically. Both Houses decided in favour of giving
power to the Senate to amend Money Bills, instead of the mere power
of suggestion. The Assembly also passed an amendment providing
for the election of Federal Ministers by the two Houses of Pai-liament
for a term of three years, subject to dismissal by the vote of a joint
sitting. The Council proposed to make the High Court consist of one
Supreme Court Judge from each State; and it also adopted Mr.
Gordon's attempted definition of a preferential rate. Lastly, the
Assembly adopted a deadlock clause, providing that if, after continued
disagreement upon any question, either House resolved that the ques-
tion was one of urgency, the Governor-General might grant or refuse
either a dissolution (apparently of both Houses) or a dual referendum.

Tasmania. — In Tasmania the amendments made were somewhat
less important. With regard to the origination of Appropriation
Bills, the House of Assembly made the suggestion, which was subse-
quently adopted by the Convention, to leave out the somewhat vague
words as to the " main object " of the Bill, and to substitute a proviso
that either House might originate appropriations of fines or penalties,
or fees for licenses or services. This secured the desired result of
giving the Senate power with regard to petty incidental appropriations,
without opening debatable questions as the " main object " of the
Bill. Both Houses were in favour of giving the Senate power to
amend Money Bills. Both Houses also agreed to an elaborate scheme
for the immediate taking over of the debts of the States, making the
Commonwealth chargeable with the whole interest bill, and giving it
an indemnity against each State for interest paid in respect of any
excess of its indebtedness, on a per capita basis, over that of the State
whose indebtedness was least. The Tasmanian Parliament did not
wish for the insertion of any deadlock scheme ; but the Assembly
provisionally suggested a scheme " for use in the event of the Con-
vention deciding to make a provision to evade deadlocks, but not
otherwise." It provided that in the event of a disagreement, followed
by a dissolution of the House of Representatives, the law in dispute,
if again carried by a four-sevenths majority of the House of Repre-
sentatives, and then by a three-sevenths majority of the Senate,
might be deemed to have passed both Houses.

Western Australia. — The West Australian Parliament did not
meet until 17th August. Its consideration of the Bill was short, and
its amendments were few. Both Houses claimed for the Senate the
power to amend taxation bills. In respect of the return of surplus
revenue, both Houses asked for a guarantee, not in the aggregate
merely, but to each individual State, and struck out the sliding scale
of distribution ; whilst, for the ultimate basis of distribution, the
Assembly rejected the per capita system in favour of a return in pro-

186 HISTORICAL INTRODUCTION.

portion to contributions. The Assembly also proposed to charge the
Commonwealth with a proportion of the debts, on the basis, not of
population, but of adult male population. Western Australia at
present numbers an abnormally large proportion of adult males — a fact
which goes far to account for her abnormally high revenue from
Customs ; and it was argued that a factor which had so potent an
influence on the incidence of taxation should not be ignored on the
other side of the ledger.

Survey of the Suggestions. — A comparison of the general trend
of the amendments thus suggested in the five colonies is most interest-
ing. The main lines of cleavage on constitutional points were two.
There was in the first place a general opposition between the constitu-
tional views of the more populous colonies on the one hand, and the
less populous colonies on the other hand; the former inclining towards
the absolute supremacy of the majority, independent of State boun-
daries, and the latter towards some degree of control by a majority of
States. There was also, in each colony, a conservative and a liberal
yie^ — tl^e former, for the most part, represented by the Legislative
Council^ and the latter by the Legislative Assembly. The Conserva-
tive, or Upper House, sympathy was with a strong Senate ; and hence
— partly by accident, and partly by a natural association of ideas —
the Conservative view and the "particularist" or State right view
tended to approximate, though their aims by no means coincided;
whilst in the same way the liberal view and the nationalist view
tended also to approximate. The result was a certain blurring of the
lines of State cleavage. Just as in the Convention it seldom happened
that any delegation voted solid, so in the Parliaments it seldom
happened that the two Chambers quite agreed on their most important
suggestions.

But besides constitutional differences, such as those with regard
to money bills and deadlocks, there were also differences of interest or
policy, such as those with regard to the river question, the railway
question, or the tariff question. On these matters the issues were
far more clearly cut between the colonies immediately interested.

On the whole, as to constitutional questions and commercial ques-
tions alike, the draft constitution held a pretty fair balance between
the conflicting views. The compromises made by the Convention
were re-opened in the Parliaments in opposite directions. Thus with
regard to Money Bills, the Legislative Assemblies of New South
Wales and Victoria wanted to give the Senate less power; the Legis-
lative Councils of those colonies were content Avith the clauses as they
stood; whilst the Legislatures of the other colonies wanted to give the
Senate more power. These different amendments represented the
divergent views which the Convention had endeavoured, with remark-
able success, to reconcile.

In two points, however, there seemed to be considerable dissatis-
faction with the Bill ; in respect to the financial clauses, and in respect
to the absence of a " deadlock " provision. The Adelaide " sliding
scale " of distribution had considerable merit as an attempt to bridge
the gulf between the system of distribution according to contributions,
which was admittedly necessary to begin with, and the system of

THE FEDERAL MOVEMENT IN AUSTRALIA. 187

distribution per capita, which was ultimately desirable. But it did
not please New South Wales — to meet whose objections to immediate
per capita distribution it had been expressly devised — nor was it
approved in any other colony except South Australia — whose
Treasurer, Mr. Holder, was the real author of the clause. As to dead-
locks, the Legislative Assemblies of three colonies — NeAV South Wales,
Victoria, and South Australia — agreed that some provision was
necessary, though they differed in their ideas of what it should be.
The Assemblies of Western Australia and Tasmania did not want any
such provision ; nor did any of the Legislative Councils.

(12) THE SYDNEY SESSION OF THE CONVENTION, 1897

On 2nd September the Convention met in Sydney to reconsider
the draft Constitution, together with the amendments suggested by
the Legislatures. Some hopes had been held out that Queensland
would be represented at this sitting, but they were disappointed. In
June an Enabling Bill had been introduced in the Legislative
Assembly of that colony, providing that representatives elected by
the Parliament should attend the Sydney Convention, on condition
that the draft Constitution should be reconsidered clause by clause.
Mr. Thomas Glassey, leader of the labour party, had thereupon
moved a resolution similar to that previously moved by Mr. Curtis,
that no Bill would be acceptable which did not provide for the direct
election of the representatives ; and a vote having been taken which
amounted to a defeat of the Government proposal, the Bill was with-
drawn on 14th July. On 29th July Mr. John Leahy moved a
resolution affirming the desirability of Federation, and of Queensland
being represented at the Convention, but this was ultimately dis-
charged from the paper. At last, on 9th September, while the Con-
vention was sitting, Mr. J. V. Chataway moved a resolution, which
was duly carried, asking the Convention not to conclude its work till
Queensland had an opportunity of being represented. Accordingly
the colonies represented at the Sydney sitting were the same as before.
There was a change in the West Australian delegation, the Hons. H .
Briggs, M.L.C., F. C. Crowder, M.L.C., A. H. Henning, M.L.C., and
H. W. Venn, M.L.C., taking the places of Messrs. Piesse, Loton,
ShoU, and Taylor, who had resigned on 26th August.

The business of the Convention involved not only the general
reconsideration of the whole Bill in the light of recent discussion, but
also the consideration of some 286 amendments, in all, suggested by
the ten Houses of Parliament. The chairman (Sir R. C. Baker)
"wisely decided that all these amendments should be put from the
chair, and voted upon, as though they had been moved by a repre-
sentative ; so that no Parliament could say that its suggestions were
slighted. It soon proved, however, that the work before the Conven-
tion was too much to be disposed of in the time at its disposal. A
general election in Victoria was impending, which would call the
Victorian representatives away ; and it became clear that another

188 HISTORICAL INTRODUCTION.

adjourninent would be necessary. In order, however, to settle some
of the most important questions, it was decided once more to depart
from the consecutive order of dealing with the clauses. Most of the
debate at Sydney was monopolized by four great questions : the
financial problem, the basis of representation in the Senate, the power
of the Senate with regard to Money Bills, and the insertion of a pro-
vision for deadlocks.

The Financial Debate. — With regard to the financial clauses,
the first step was to appoint a Finance Committee, consisting of the
five Treasurers and one other representative from each delegation, to
report upon Chapter TV. of the Constitution. Then followed a general
debate, in which the whole financial question was discussed at large.
The tenor. of the debate was critical rather than constructive; and
though no conclusion was arrived at, the difficulties as they presented
themselves to the several colonies were reviewed at length. The
great central difiiculty was to formulate — while the nature of the
federal tariff, and its operation, were still unknown quantities — some
scheme of distributing the federal surplus which would not only be
fair in itself, but would guarantee all the States against any dislocation
of their finances. This difficulty arose out of the widely-difl^ering
character of the existing tariffs of the colonies, and the differing
degrees of their dependence on customs and excise revenue. At one
end of the scale stood New South Wales, with a purely freetrade
tariff and a large land revenue. The finances of that colony, under
almost any system, would be secure ; what she feared was, not a
deficiency of revenue for provincial purposes, but an unduly large
increase of taxation through the customs. At the other end of the
scale stood Western Australia, with a large unsettled mining popula-
tion, and relying almost entirely on customs duties, a great proportion
of which were collected on intercolonial produce. It w^as recognized
that her abnormal position required special treatment, and that no
system of general application could meet her needs. Between these
extremes were the other three colonies — all relying largely on customs
and excise, and all unwilling to resort, in any great degree, to direct
taxation. The customs and excise revenues surrendered to the
Commonwealth would be some four times as much as were needed for
federal expenditure ; and each colony wanted some guarantee that it
would get back, not only its fair share of what it contributed, but an
amount sufficient to balance its provincial accounts. The two pro-
blems were to guarantee that there would be a large surplus to dis-
tribute, and to find a basis of distribution which would meet the needs
of all the colonies.

The basis of distribution provided by the Adelaide sliding scale
had not found favour. As Mr. Holder said, it was "a child of misfor-
tune— misfortune in that it was laid before the Convention and
accepted [in Adelaide] on the faith of those who recommended it;
never discussed, never explained — thrown into a cold world, without
anybody to be father to it." Mr. Reid admitted its good points, but
recognized that it had not inspired public confidence; and, in common
with most of his delegation, fell back on the necessity of leaving the
whole question to the Federal Parliament. The "unknown quantity^'

THE FEDERAL MOVEMENT TN AUSTRALIA. 189

of the federal tariff, it was contended, made it impossible for the
Convention to solve the question ; a basis of experience was necessary.
The other colonies were willing to " trust the Federal Parliament " to
a certain extent; but they wanted some guarantee of their State
finances. Methods were suggested for evading the difl&culty by
saddling the Commonwealth with some of the obligations of the States
— for instance, in respect of the debts, or the railways, or both — but
all these plans, as Mr. McMillan pointed out, only " covered up " the
surplus, and did not get rid of the problem of apportionment. The
uncertainty surrounding the whole question was increased by the
calculations of the statisticians, which were sometimes treated as
reliable forecasts, and sometimes — with more truth — as deductions
from unreal and improbable assumptions. The debate threw all the
difficulties into high relief, and it was then left to the Finance Com-
mittee to find a solution.

Senate Representation. — The Senate debate took place upon the
New South Wales suggestion to substitute proportional for equal
representation. The opponents of equal representation proved to be
only five in number. It must be noted, however, that most of its
supporters justified it, not so much on the abstract principle of State
equality, but as a concession to the smaller States, necessary to secure
their assent to the Constitution, and expedient to secure the fair treat-
ment of local interests. This view of equal representation in the
Senate, as based not on abstract logic but on practical compromise,
was emphasized by an amendment which made it clear that the
guarantee of equal representation was given only to " original States,"
and was not extended to States which might afterwards enter the
union, or be created within it by subdivision or otherwise. It is also
noteworthy that many of the delegates who accepted equal represen-
tation did so in the expectation, and on the understanding, that some
provision would be inserted for securing the due subordination of
State interests to national interests. The debate in fact pointed
forward to the adoption of a deadlock clause which would place some
restriction on the absolute veto of the Senate. The Convention
explicitly affirmed the principle that the structure of the Federal Par-
liament ought to ensure due consideration to State interests ; but it
explicitly denied the doctrine that all federal legislation must
necessarily receive the assent of a majority of the States.

Money Bill Clauses. — In the Money Bill clauses only one sub-
stantial amendment was made. The vague and somewhat sweeping
power of the Senate to originate appropriation Bills whose "main
object " was not the appropriation of revenue was taken away, and in
its place was inserted the Tasmanian suggestion, drafted by Mr. Inglis
Clark, giving the Senate power to originate Bills involving incidentally
the appropriation of fines or fees. This provision was based upon a
standing order of the House of Commons, which had already been
adopted by the Legislative Assemblies of South Australia and Tas-
mania. The amendment of the Legislative Council of Western Aus-
tralia, to give the Senate power to amend taxation Bills, was debated
at some length, but was defeated by 28 votes to 19.

Deadlocks. — The longest and most important debate of the
Sydney sitting was that upon deadlocks, which lasted from 15th to

190 HISTORICAL INTRODUCTION.

21st September. On this question several distinct suggestions had
been made by the Legislatures ; and the clause first proposed from
the Chair was that suggested by the Legislative Assembly of New
South Wales, providing for a referendum of the kind spoken of at the
Convention as a "mass" or "national" referendum — a referendum,
that is to say, at which a simple majority of all the electors voting
should decide. The discussion began by a general debate on the
whole question. (Conv. Deb., Syd., pp. 541-79.) Some of the mem-
bers had thought from the outset that some provision would be
necessary to prevent serious conflicts between the Houses. Others,
who thought conflicts would be infrequent, nevertheless agreed that
some provision in the nature of a " safety-valve " would be desirable ;
and some who had previously opposed any such provision were now,
upon more mature consideration, converts to this view. The devices
which were chiefly discussed at the outset were the dissolution of both
Houses, either consecutively or simultaneously, and the referendum,
either national or dual. Of these, all except the national referendum
preserved the veto power of a majority of States, and therefore failed
to provide effectually against the conflict which was feared from the
double basis of representation. They safeguarded State interests,
but did not ensure finality. They Avould only be effectual in cases
where the Senate's constituents either differed from their representa-
tives, or were overborne by the moral weight of the national majority.
This, of course, from the point of view of the small colonies, was a
strong recommendation; but from the point of view of the large
colonies it meant that these schemes failed in their chief function ;
that, whenever State interests and national interests clashed, the dead-
lock, so far from being cured, would be intensified by being transferred
from the Parliaments to the people. On the other hand the national
referendum, though absolutely final, ignored the individual States
altogether, and was objected to by the small States as practically
destroying the power of the Senate to protect their interests.

Some compromise was needed which would partially, but not
fully, recognize State individualities; and to effect this, Mr. Kingston
and Mr. Reid suggested that the subjects of legislation which affected
State interests might be defined, and the dual referendum applied to
them, whilst the national referendum should be applied in all other
cases. It was soon seen, however, that no definition of this kind could
possibly be framed, as almost every conceivable subject of legislation
could be dealt with in a way which might seriously prejudice State
interests. Some other principle of compromise had to be looked for.

The Tasmanian suggestion — which, in case of continued dead-
lock, enabled a four-sevenths majority of the House of I^epresenta-
tives to override a four-sevenths majority of the Senate — was not
much discussed ; but the somewhat similar device of a joint sitting of
both Houses, which had previously been suggested in a tentative
way by Mr. O'Connor, Mr. Reid and others, was now revived as a
possible solution of the difficulty. It was not favourably received by
Sir George Turner and Mr. Isaacs, who had an affection for the refer-
endum— even the dual referendum, if no other were attainable. In
fact — as is the way with compromises — it aroused no enthusiastic

THE FEDERAL MOVEMENT IX AUSTRALIA. 191

support anywhere ; but both sides looked upon it as a possible last
resort if thev could get no better terms. The dissolution and the
referendum continued to occupy the most prominent place in the
debate ; which turned a good deal on the restrictions and safeguards
which ought to be placed on both these devices to prevent their abuse.
The objections raised to the consecutive dissolution, first of the House
of Representatives and then of the Senate, were : first, that it would
enable the Senate, without immediate risk to itself, to penalize the
other House ; next, that it would mean that the two sides of the
question would be put to the people at different times. The objection
raised to the simultaneous dissolution of both Houses in the first
instance was that it would enable the Ministry constantly and syste-
matically to bring threats and pressure to bear on the Senate. And
the objection raised to any dissolution of the Senate at all was that
it would destroy the continuity which was effected by the principle of
rotation — an objection largely met by the reply that deadlocks would
undoubtedly be rare, and that resort to the deadlock clause would be
"the medicine, not the dailv food," of the Constitution. The arsru-
ment against the referendum was that it would weaken Ministerial
and Parliamentary responsibility ; and accordingly many of those
who objected strongly to its use as a first step were inclined to view
it with less disfavour if it were preceded by the responsible step of a
dissolution. The general discussion ended with a test vote on the
first word of the proposed clause, which resulted in a decision, by 30
votes to 15, in favour of a deadlock clause of some kind. Then came
the question of the choice of methods.

The first amendment, moved by Mr. Symon, was to the effect
that if the Senate should disagree with any Bill passed by the House
of Representatives, and if " on that account " the House of Repre-
sentatives were dissolved, and if the deadlock still continued, the
Grovernor-General might dissolve both Houses. It was at once com-
plained that this not only required the House of Representatives to be
penalized first, but also involved its being dissolved twice to the
Senate^s once, and Mr. Symon accordingly consented to deprive the
first dissolution of the House of Representatives of its penal char-
acter by omitting the words '^ on that account," and to allow the
Senate alone to be dissolved in the second instance. This proposition
for a consecutive dissolution was strongly opposed by the representa-
tives of New South AVales and Victoria, but was carried, after dis-
cussion, by 27 votes to 22 — the division practically representing the
three small colonies against the two large ones. To most of the
representatives of the latter the vote was very unpalatable ; but it
had to be accepted for the time being.

Mr. Lyne then moved to add to Mr. Symon's amendment a pro-
vision that if, after the consecutive dissolution, the deadlock still
continued, the measure in question should be referred to a national
referendum. But Sir George Turner, though he had been prepared
to allow the referendum to follow a simultaneous dissolution, would
not postpone it till after the consecutive dissolution ; and he accord-
ingly moved an amendment on Mr. Lyne's proposition, so as to provide
that instead of a dissolution, there might be a referendum (either

192 HISTORICAL INTRODUCTION.

dual or national) in tlie first instance. Mr. Wise, in turn, objected to
a referendum without a previous dissolution, and accordingly moved
to amend Sir George Turner^s amendment by inserting a simultaneous
dissolution before the referendum. The proceedings were getting
rather tangled, and to simplify matters the discussion was postponed,
with leave to the Committee to reconsider and rescind the unsatisfac-
tory vote already taken, and to begin afresh.

The Committee, however, did not take advantage of this leave,
but proceeded to discuss the series of amendments thus proposed. A
Avhole day's debate followed before anj' decision was come to. A vote
then taken, without division, on the first word of Mr. Lyne's amend-
ment, decided that whatever new machinery was added should be
made alternative to, and not consequent upon, Mr. Symon's consecu-
tive dissolution. The result was that Mr. Symon's provision led up to
nothing further, but stood by itself as one mode of securing agree-
ment; whilst the Convention, not satisfied with that mode, proceeded
to work out an alternative one.

Mr. Lyne's amendment was now out of the way, and the questions
before the Convention were Sir George Turner's proposition for a
referendum, and Mr. Wise's amendment for preceding this with a
simultaneous dissolution. Mr. Wise's amendment was carried by 25
votes to 22 — a decision that, if there were to be a referendum at all,
it should only be after a double dissolution. It soon became evident,
moreover, that though the friends of some kind of referendum were in
a majority, they were hopelessly split when the choice had to be made
between the national and the dual referendum. As a result, the
national referendum was defeated by 36 votes to 18 — the smaller
colonies voting almost solid with the majority — and the dual referen-
dum was next defeated by 27 votes to 18.

Mr. Carruthers then came to the rescue with a proposition that
Mr. Wise's double dissolution should be followed up by a joint sitting
of both Houses, at which a three-fifths majority should be able to
carry the measure. Though no one waxed enthusiastic over the joint
sitting for its own sake, it was supported as being on the whole the
best compromise that the Convention would agree to. It was, how-
ever, strongly opposed by Sir George Turner and Mr. Isaacs on the
one hand, and some of the friends of a strong Senate on the other.
Mr. Kingston moved an amendment to substitute, in place of the joint
sitting, a national referendum '' in the case of national questions," and
a dual referendum "when State interests are involved;" but the
impossibility of defining State interests was apparent, and the amend-
ment was negatived by 30 to 11. The "three-fifths" majority at the
joint sitting caused some debate. Mr. Howe, of South Australia,
wanted to increase it to " two-thirds ; " Mr. Higgins, of Victoria, to
diminish it to a bare majority. A proposition to omit the words
"three-fifths" was defeated by 28 votes to 13 — Mr. Reid and others,
who preferred a bare majority, not caring to risk the loss of every-
thing by insisting. Mr. Carruthers' amendment was then carried by
29 votes to 12.

The result of these votes was that Sir George Turner's original
proposition for a referendum was overlaid by the Wise-Carruthers

THE FEDERAL MOVEMENT IN AUSTRALIA. 193

amendment, providing for a simultaneous dissolution of both Houses,
followed, if necessary, by a joint sitting. The question that this
composite proposition stand part of the clause was carried in the
affirmative by 23 votes to 13. A further amendment by Mr.
Carruthers, to allow a bare majority at the joint sitting, if defeated, to
appeal to a national referendum, was rejected; and the clause was
then agreed to. The Sydney session thus resulted in two deadlock
schemes : Mr. Syraon's consecutive dissolution, standing by itself and
leading to nothing further ; and the Wise-Carruthers scheme of a
double dissolution followed by a joint sitting. The latter scheme
represented the real decision of the Convention, and it was tacitly
understood that Mr. Symon's consecutive dissolution was supei^seded,
and would be subsequently rescinded.

The necessity for the departure of the Victorian delegates brought
the proceedings of the Sydney session to a close before more than half
of the clauses of the Constitution had been considered; and on 24th
September the Convention adjourned, to meet for its final session at
Melbourne on 20th January, 1898.

Queensland and New South Wales. — It was hoped that this
adjournment might enable Queensland, even at the eleventh hour, to
take part in the proceedings of the Convention ; but the hope was
again disappointed. A third Enabling Bill was indeed introduced in
that colony in November, for the direct election — at last — of Queensland
representatives by the whole colony as one constituency. This Bill
was again wrecked by the provincial differences of the three great
divisions of the colony. Mr. Curtis moved the withdrawal of the
Bill with a view to having the colony divided into three constituencies.
He succeeded in his object so far as the withdrawal of the Bill was
concerned ; but no further Bill was introduced. Federalists were still
too divided by provincial differences to make headway against
opposition.

In New South Wales, the interval between the Sydney and
Melbourne sessions was marked by a determined effort by the opponents
of the Convention scheme to prevent its ultimate adoption by the
people. The Parliament of New South Wales contained many mem-
bers who, if not exactly anti-federal, were at least strongly opposed
to Federation on the lines which commended themselves not, only to
the Convention, but to most of the zealous advocates of Federation.
They had allowed the Enabling Bill to pass without much protest,
little dreaming of the strength of public sentiment by which the
movement so started would be supported and carried to a conclusion ;
and they now rallied for a last Parliamentary stand. In June, a Bill
had been introduced in the Assembly by Mr. R. H. Levien, a private
member, to amend the Enabling Act by requiring an affirmative vote,
at the federal referendum, of an absolute majority of all the electors
on the roll. As the roll at that time numbered about 278,000
electors, this meant an affirmative vote of some 139,000 — an impossible
number to expect. The Bill reached its second reading on 12th
October, when it was found that though few members were willing to
go so far as to require an absolute majority, many would vote for a
substantial increase in the minimum of 50,000 imposed by the

194 HISTORICAL INTRODUCTION.

Enabling Act. Any amendmeiit of the Enabling Act at this stage
Avas denounced by the most prominent federalists in the House as a
breach of faith with the other colonies ; but the second reading was
carried by 47 votes to 27, and in Committee an amendment was carried
requiring a minimum affirmative vote of 80,000. In that form the
Bill was passed and sent to the Council, where it was intro-
duced by Sir Julian Salomons. It met with determined opposition
from Mr. Barton, Mr. O'Connor, and other prominent federalists, who
however found themselves in a minority. The second reading was
carried by 21 to 17, and in the course of an all-night sitting, notwith-
standing gallant resistance, it was forced through Committee with the
help of a plentiful — and in that Chamber, unprecedented — use of the
closure. It became law on 12th December.

(13) THE MELBOURNE SESSION OF THE CONVENTION, 1898.

The Melbourne session, extending from 20th January to 17th
March, 1898, was the longest and most important of all; and the
necessity of coming to a final decision on all points invested its
deliberations with special weight. The whole Bill received thorough
reconsideration by the Convention, and thorough revision by the
Drafting Committee. The passage through Committee of the Whole,
interrupted in Sydney, was completed — ending with the finance and
trade clauses, on which the Finance Committee had meanwhile
reported. This process occupied the Convention until 3rd March,
after which the Bill was four times recommitted for the consideration
of certain clauses, and for the insertion of drafting amendments, before
it was finally adopted by the Convention. The debates which stand
out from the others as being of pre-eminent importance were those
relating to rivers, finance, and railway rates.

Rivers. — The river question raised the first long debate, whicl
occupied nearly a fortnight of the time of the Convention. (Convi
Deb., Melb., pp. 31-150, 376-642, 1947-90.) It began upon the
suggestion of the Legislative Council of South Australia, to extend tc
the " Darling, Murrumbidgee, and Lachlan " the sub-clause empowers
ing the Federal Parliament to regulate " the navigation of the rivei
Murray and the use of the waters thereof." The South Australiai
claim, at first, involved federal control not only of navigation, but of
irrigation and water conservation as well. It was argued that the
great rivers belonged, not to one colony, but to all ; that they wer€
essentially national in character, and that the use of their waters, foil
all purposes, could only be effectually dealt with by the federal
authority. As regards navigation. South Australia undoubtedly hac'
the best of the argument, and no serious attempt was made in Mel-
bourne to confine federal control of navigation to boundary rivers. It
was also admitted that the navigation power ought not to be confinec'
to the rivers which were '' navigable ^^ in the sense laid down bj
English decisions, as being subject to the ebb and flow of the tide, but]
ought to extend, as defined by cases in the United States, to rivera

THE FEDERAL MOVEMENT IN AUSTRALIA. 195

whicli were in fact, permanently or intermittently, navigable for
purposes of trade and commerce. But it was pointed out that irriga-
tion and conservation were not subjects handed ov^er to the Common- "
■wealth, and therefore that the " use of the wafers " for these purposes
was a matter in which the States, which were responsible for the
settlement and cultivation of their lands^ were primarily interested.
This the South Australian representatives were soon obliged to
concede, though they maintained that there were, or ought to be,
riparian rights between States as between individuals, and that these
rights ought to be defined by federal law. The debate proceeded
mainly, however, on the recognized assumption that navigation — at
least inter-State navigation — was a federal power, incident to
the control of trade and commerce, whilst irrigation and con-
servation were State powers incident to the control and
management of the land. The difficulty remained, that the
two powers might_possibly__conflict. Irrigation and conservation
works in the States, if uncontrolled by the Commonwealth, might
destroy the navigability of the rivers ; whilst navigation regulations
of the Commonwealth, and more especially works for maintaining or
improving the navigability of the rivers, might seriously interfere
with irrigation and conservation. South Australia adjured New South
"Wales to "trust the Federal Parliament;" New South Wales replied
that she was prepared to trust the Federal Parliament in federal
matterSj but that provincial rights ought to be beyond the reach
of the Federal Parliament. It was argued very strongly that both
sides were fighting a shadow, and that the danger of conflict was
imaginary; that the two powers, so far from being antagonistic, would
probably mutually benefit each other. Neither party, however, could
be wholly satisfied as to this ; and the question was how far either
power, in case of conflict, ought to be paramount. Amendments
inimmerable^ were suggested, with a view to giving the Federal
Parliament power to deal with the " maintenance of the navigability,"
or " the maintenance and improvement of the navigability " of the
rivers ; whilst the New South Wales representatives contended that
the clause ought to be restricted to the "control of navigation."
^'Navigability," they objected, was such an uncertam and intermittent
condition in the Darling that it was impossible to define what its
*' maintenance " meant ; and it would be equally impossible to decide
whether a particular irrigation work interfered with " navigability "
or not. Moreover, power to maintain — and still more to improve —
navigability, must, in order to be effective, deal with tributaries, and
control the use of the water. Irrigation and conservation, they
contended, were needed for production, and were infinitely more
important than navigation, which was only needed for carriage.
Accordingly, they objected to any provision which made navigation
paramount, and cultivation subservient. To meet these objections,
various limitations were suggested by way of preventing interference
with a " reasonable use " of the waters for irrigation, or of requiring
" a just regard to the necessities of water conservation and irrigation."
None of these suggestions, however, satisfied the New South Wales
representatives, who complained that they were being asked, in the

196 HISTORICAL INTRODUCTION.

name of Federation, to give up their undoubted rights with regard to
provincial matters. No solution seemed ready, and Mr. Barton
secured the postponement of the clause in order that the delegations
most directly concerned might thresh the matter ouji in friendly
conference.

The friendly conference, however^ was unsuccessful, and the
debate re-commenced. In the interval Mr. Carruthers, the New
South Wales Minister for Lands, had procured and hung in the
vestibule a large map showing the watershed of the Murray system;
and this helped the representatives of Tasmania and Western Aus-
tralia, who were in the position of disinterested umpires, to see that
the objections of New South Wales were not unfounded. The Con-
vention began to hark back to the position that, after all, the " trade
and commerce " power, together with the power to regulate "naviga-
tion and shipping,^^ gave all the control of navigation that was
necessary, and that the best solution would be to follow the American
example and attempt no detailed definition. A number of amendments,
on the lines previously foreshadowed, were proposed and negatived,
and eventually the whole sub-clause was struck out. Attempts were
made to substitute various other provisions in its place ; but these
were all rejected in turn, and the " navigation " power was left unde-
fined and unfettered, without any reference to rivers.

New South Wales, however, was not yet satisfied. The federal
control of rivers was now limited to navigation ; but the navigation
power, being a federal power, would be absolutely paramount, in case
of conflict, over the rights of the States to use the water for any other
purpose. Mr. Eeid and Mr. Carruthers wanted to secure the rights
of irrigation and conservation, which they regarded as of paramount
importance, against any possible interference by the Federal Par-
liament. Accordingly, after the second re-committal of the Bill,
Mr. Carruthers moved to add to the " navigation and shipping "
sub-clause a proviso that the use of the rivers for navigation should
be subordinate to the conservation of waters within any State to
meet the requirements of its people. He argued that without some
such safeguard no one could safely invest money in conservation
works without the express sanction of the Federal Parliament. The
South Australians, having failed to secure their own amendments,
fougM for the Bill as it stood, and claimed that irrigation must not be
made paramount unless some just basis of distribution between
riparian States were recognized. Finally Mr. Carruthers withdrew
his amendment in favour of one by Mr. Reid, to the effect that the
navigation power *' shall not abridge the rights of a State or its
citizens to the use of the waters of rivers for conservation and irriga-
tion." This, it was claimed, merely protected the existing rights of
New South Wales, leaving it to the Court to say what those rights
'were. The South Australian argument, however, was that, whatever
the present legal rights of a colony might be, they should not be para-
mount when they conflicted with the reasonable use of the powers of
the Commonwealth. Several previous amendments had offered to
concede to the States the "reasonable use" of the waters, and now
Sir John Downer proposed to insert " reasonable " before " use " in

THE FEDERAL MOVEMENT IN AUSTRALIA. 197

Mr, Reid's amendment. Mr, Reid feared that the indefinite word
'' reasonable " would destroy the effect of the provision for the pre-
servation of rights ; but the Convention was against him, and the
sub-clause was carried with Sir John Downer's amendment. Later, it
was re-modelled by the Drafting Committee into a separate clause
explanatory of the " trade and commerce " power.

The Financial Clauses. — The Finance Committee appointed in
Sydney had not, during the Sydney session, found much time for
deliberation ; but during the early part of the Melbourne session they
got to work, and framed a series of resolutions which, with the help
of the Drafting Committee, were shaped into clauses. On 10th Feb-
ruary, when the first consideration of the whole Bill, except Chap. lY.,
had been completed, the Finance Committee brought up their report.
They proposed a complete reconstruction of the financial scheme of
the Bill. They recommended that the Adelaide " guarantees " of a
limited expenditure and of a minimum aggregate return of surplus
should be omitted. They submitted a new clause to provide against
a loss of revenue which it was feared might result during the first year
of the tariff if merchants "loaded up " dutiable goods in New South
Wales in anticipation of the tariff, in the hope of making them free of
the Commonwealth without paying duty. The new clause pro\'ided
that such goods, on transportation into another State within a certain
time after the uniform tariff, should pay the difference between the
duty chargeable on importation under the uniform tariff and the duty
they had already paid.

As regards the period before the uniform tariff, no substantial
change was made ; but after the uniform tariff it was proposed to
abolish the Adelaide sliding-scale, and revert to the despised system
of book-keeping " for five years, and thereafter until the Parliament
otherwise provides." In other words, they harked back, practically,
to the plan of 1891, ensuring each State a return on the basis of its
contributions for five years, and leaving the ultimate mode of distri-
bution to be determined by the Parliament, after five years' experience
of federal conditions.

To meet the abnormal position of Western Australia, a clause
was suggested to provide that in the event of a falling off in the pro-
portional amount collected in that colony, as compared with the rest
of the Commonwealth, the deficiency should be made good by the
Commonwealth.

On this report there was a general debate of two days' duration.
(Conv. Deb., Melb., pp. 774-895). On the whole, the scheme was
received with general, though cautious, approval, as the best that
could be done with a difficult problem. The abolition of *' guarantees,"
however, was strongly objected to by Sir George Turner and Mr.
Isaacs for Victoria, and by Sir Edward Braddon and others for Tas-
mania. Mr. Holder, on the other hand, argued that an express
guarantee was unnecessary, because " the necessities of four out of
five States " were a sufficient guarantee that the Parliament would
raise its revenue and limit its expenditure to meet those necessities.
Some of the Tasmanians also thought that their colony ought to
receive special terms like those given to Western Australia.

198 HISTORICAL INTRODUCTION.

The clauses were then dealt with in detail, and the recommenda-
tions of the Finance Committee were substantially accepted, except in
respect to the West Austi-alian clause. It was pointed out that any
loss of revenue which that colony might suffer would be a purely
Treasury loss, owing to a remission of taxation to the West Australian
tax-payers ; and it was argued that this loss ought to be made up by
the tax-payers of Western Australia, not by the tax-payers of the
other colonies. Western Australia, however, was not yet in a position
to raise much revenue otherwise than through the customs ; so it was
finally agreed to allow her, for five years, to impose gradually
diminishing duties on intercolonial imports. This would, of course,
postpone for a while the full benefits of intercolonial freetrade, and
was not very welcome to South Australia, the next-door neighbour of
Western Australia; but the point was conceded in consideration of
the abnormal conditions temporarily existing in the latter colony.

The Adelaide " guarantees '^ having been struck out, several
alternative kinds of guarantee were submitted, but without success;
and when the Bill was reported a first time to the Convention it
contained no express guarantee whatever as to the return of surplus.
This position, which was due to the strenuous objections of the New
South Wales delegates, was not accepted as final by the other
colonies ; and after the third recommittal Sir Edward Braddon, after
consultation with others of the same mind, brought up the first draft of
the famous Braddon clause, providing that out of the net customs and
excise revenue not more than one-twentieth should be spent by the
Commonwealth in the exercise of its original powers, not more than
four-twentieths should be spent upon transferred sei'vices, and the
remaining three-fourths should be distributed among the States. The
proposal was made in the small hours of the morning, towards the
close of the sittings ; it had been in print for some days, the Conven-
tion had already discussed the whole question fully, and it was carried,
with hardly any debate, by 21 votes to 18 — the Victorians and
Tasmanians voting solid with the '^Ayes," and all the representatives
of New South Wales, except Mr. Lyne, with the "Noes."

Next day it was reconsidered. Mr. Barton made an effort to
limit it to five years, in which he was backed up by Mr. Reid, who
reiterated his objections to any guarantee at all, but admitted that, if
there must be a guarantee, this was the least objectionable form of it
that he had seen. Mr. Holder put the argument for the clause very
clearly. The Federal Treasurer would only need, for federal purposes,
a revenue of £1,500,000; but to meet the needs of the States, he
ought to raise at least £6,000,000. He still thought that the best
guarantee was the necessities of the States; that this clause only
imposed a statutory obligation to do what in any case the Parliament
would be under a political obligation to do. Still, he pointed out the
difficulty of satisfying the electors — upon whose acceptance the Con-
stitution depended — without plain words on the face of the Constitu-
tion ; and he supported the clause without limitation. Mr. Barton's
amendment was negatived; and the clause passed with an amendment
providing that, when any part of the public debts was taken over,
revenue returnable to the States might be devoted to the payment of

THE FEDERAL MOVEMENT IN^ AUSTRALIA. 199

interest . The clause was discussed yet once again, when Sir Edward
Braddon consented to simplify it by omitting the distinction between
different kinds of expenditure, and allowing the Commonwealth to
spend one-fourth of the net receipts.

The financial clauses, as finally passed, substantially differed from
those of 1891 in one respect only — the addition of the "guarantee^'
contained in the Braddon clause. The question of guarantees to the
States against the dislocation of their finances had troubled the Con-
vention from the very first ; the problem being to satisfy Victoria,
South Australia, Western Australia, and Tasmania on this point with-
out arousing the fears of New South Wales that a high tariff would
be required. In the latter part of their task — as subsequent events in
New South Wales proved — the Convention did not altogether succeed;
for it was upon the Braddon clause that the opponents of the Bill in
l^ew South Wales made the fiercest and most effective attack.

Railway Rates. — The question of regulating the war of railway
tariffs caused a series of long and critical debates, owing to the diffi-
culty, in the first place, of finding any satisfactory definition of fair or
unfair competition, and the difficulty, in the second place, of securing
harmony between the apparently conflicting interests of the rival trade
centres, Sydney and Melbourne.

To begin with, Mr. Barton proposed to substitute, for the prefer-
ence clause agreed to in Adelaide, a clause forbidding both the
Commonwealth and the States to make any law or regulation of
commerce or revenue which should give any preference to one State
over another. This was at once objected to as going too far.
That the Commonwealth should give no preferences was admitted ;
that a State should not be permitted to " derogate from free-
trade " by trade barriers of any kind was also admitted ;
but that a State should be forbidden to attract trade to itself
— to compete for trade by increasing the facilities for it — was
too sweeping. It was strongly urged that the aim of Federation was
to remove obstructions to trade, not to paralyze competition. Mr.
Higgins denied this, and argued that differential rates which attracted
trade, though they did not interfere with freedom of trade, interfered
with equality of trade, and were therefore unfederal. He proposed to
add to the existing clause a prohibition against rates made " with a
view of attracting trade to ports of one State against ports of another
State." Mr. Reid, however, replied that low rates were used for
purposes of developing territory, as well as for attracting trade, and it
would be impossible to frame words which would allow the one, and
forbid the other. It would be disastrous to federalize the control of
railway rates unless the financial responsibility of management were
also federalized; and whilst he was prepared to forbid unduly high
rates, he favoured an express provision that no rates should be invalid
by reason of being unduly low. Such rates cut no throats ; they
benefited the producers ; at the cost of the State, no doubt — but that
was the State's concern. These widely differing views were developed
by several speakers, but without any satisfactory compromise being
^'^^^^ssted ; and the opinion seemed to be gaining ground that there
was really no middle course between the complete federation of the
railways on the one hand, or unrestricted competition on the other.

200 HISTORICAL INTRODUCTION.

yL'^ " Mr. Higgins' amendment was negatived by 24 to 18 ; the clause
m the Bill was struck out Avithout division ; and then Mr. Barton
proposed his new clause in a modified form, limited to the prohibition
of preferences by the Commonwealth. This would have left the
States free to charge any rates which did not come within the category
of " derogating from freedom of trade." An amendment by Sir John
Downer, to extend the prohibition to preferences by the States, was
negatived; and then Mr. Higgins moved his amendment against rates
made to "attract trade" — which this time was carried by 18 votes
to 15. s^^""

This decision somewhat alarmed New South Wales, and a wrangle
followed as to what its precise eifect would be. It seemed to aim at
fixing points of equidistance between Sydney and Melbourne as the
" watershed " of traffic, and preventing " long-haul " rates between
Sydney and Eiverina. The New South Wales contention was that
this would make waste iron of the New South Wales lines in that
^ direction, and Mr. Eeid promptly moved a proviso to prevent any
^ interference with the power of a State to fix its railway rates so as to
"secure payment of working expenses and interest upon the cost of
construction." The Convention was now in something of a tangle.
Mr. Eeid's amendment was negatived by 22 to 20 ; but it was decided
to postpone the clause until after the consideration of an alternative
suggestion by Sir George Turner.

Sir George Turner's proposition was that Parliament might make
laws to carry out the trade and commerce power upon railways, " and
particularly to forbid such preferences or discriminations as it may deem
to be undue and unreasonable, or to be unjust to any State." (Conv.
Deb., Melb., p. 1372.) The first part of this — the purport of which is
now embodied in sec. 98 of the Constitution — was merely declaratory
of the application of the trade and commerce power to State railways ;
the second part was a particular interpretation of the nature of the
power, and was meant to enable the Parliament to deal with all unfair
rates, whether too high or too low. Its phraseology was based on the
• English Eailway and Canal Traffic Acts and the American Inter-State
Commerce Act. The objections raised on the part of New South
Wales were : first, that it purported to control internal commerce, as
well as inter-State commerce ; next, that it assigned to the Parliament
a power that was properly judicial. On the latter point there was an
animated debate. Sir Geoi-ge Turner and Mr. Isaacs argued that the
question was political rather than judicial, and was properly entrusted
to the Parliament ; whilst Mr. Eeid insisted that the Parliament
would be an interested tribunal and therefore a " tainted tribunal."
However, the clause — with the omission of the word "particularly"
— was carried by 25 votes to 16.

Mr. Barton's postponed clause was now re-considered, and Mr.
Higgins' amendment, being superseded by Sir George Turner's clause,
was struck out. The Turner clause was taken very seriously by Mr.
Barton, Mr. Eeid, Mr. O'Connor, and most of the New South Wales
representatives, who complained that it meant that the railway rates
of New South Wales in the competitive area were to be fixed to suit
the interests of the other colonies. To counteract it Mr. O'Connor

THE FEDERAL MOVEMENT IN AUSTRALIA. 201

moved an amendment providing that no rate should be deemed
unlawful on the ground that it was undulj low. Afterwards, to make
his purpose clear, he added the Avords " if such rate is imposed for
the development of traffic between places within the limits of the
State." The debate became very heated ; Victoria was charged with
" aggression " and " spoliation," whilst New South Wales was accused
of wanting low rates, not for the sake of developing her territory or
benefiting her producers, but in order to secure a monopoly for her
own railways. The Turner clause had been inserted because it was
feared that the trade and commerce clause tied Victoria's hands, and
left New South Wales free. Mr. O'Connor's amendment was moved
because it was feared that the Turner clause left New South Wales
defenceless ; and Sir George Turner complained that the amendment
undid the whole effect of his clause, and tied Victoria's hands aofain.
At this stage Mr. Grant came to the rescue with an amendment — now
practically embodied in sec. 104 of the Constitution — to the effect
that there should be no interference with " the imposition of such
railway rates by any State as may be necessary for the development
of its territory, if such rates apply equally to goods fi-om other States.'*
This would empower the Parliament to prevent rates which dis-
criminated between the goods of different States, unduly high rates
which blocked inter-State traffic, and unduly low rates whose
purpose was not development, but competition. This suggestion was
favourably received by New South Wales ; but Sir George Turner
and Mr. Isaacs objected that it would throw an impossible task upon
the High Court. They contended that the proper tribunal to deter-
mine whether a rate was " necessary for development " was the
Parliament; and the Victorian Premier moved the insertion of the
words " in the opinion of the Parliament." It seemed that the whole
dispute was to be re-opened ; but at last something approaching
harmony was restored by the suggestion to leave the decision to the
Inter-State Commission — a body which would be judicial in attitude,
and at the same time better able than the High Court to investigate
and determine the questions which would arise.

The whole subject was now — after three days' debate — ripe for
settlement ; and to simplify the process the various amendments were
withdrawn, to be proposed again in the form of new clauses. Mr.
Barton's clause, forbidding the Commonwealth to make preferences,
was at once carried. Mr. Grant then proposed his clause safeguarding
rates which were " necessary for development." Sir Geoi'ge Turner
announced himself as unable to accept this unless Parliament were
made the judge of the necessity, and he moved an amendment to that
effect ; but this was rejected in favour of an amendment by Mr.
Holder to make the Inter-State Commission the judge of this question.
In that form the clause was carried by 22 votes to 21 — all the Vic-
torian representatives, except Mr. Higgins, voting against it, and all
the New South Wales representatives voting for it. This division was
taken to involve, consequentially, the substitution of the Inter-State
Commission for the Parliament in the Turner clause.

Mr. Reid then proposed a clause (now substantially embodied in
section 102 of the Constitution) requiring that '* due consideration

202 HISTORICAL INTRODUCTION.

shall be given to the financial responsibility incurred in connection
with the construction and working expenses of State railways." This
also was agreed to^ and the settlement was complete.

The clauses were afterwards recast by the Drafting Committee,
and on the second recommittal of the Bill Sir George Turner and Mr.
Isaacs again took a division on the proposal that the Parliament,
instead of the Inter-State Commission, should be the judge of the
fairness of a rate ; but the Convention was against them by 22 votes
to 15.

These provisions gave important and responsible duties to the
Inter-State Commission, and led to some changes in its constitution.
Instead of merely empowering the Parliament to constitute an Inter-
State Commission, the Convention decided to provide that "there
shall be an Inter-State Commission," and to restore the clauses giving
the members of the Commission a seven years' tenure, subject only to
removal by both Houses of Parliament in the way prescribed for
Justices of the Federal Courts. The functions of the Commission were
defined as being " the execution and maintenance within the Common-
wealth of the provisions of this Constitution relating to trade and
commerce, and of all laws made thereunder." For this purpose, how-
ever, it was only to have " such powers of adjudication and adminis-
tration as the Parliament deems necessary." As it was thus contem-
plated that the Commission should have judicial functions, it was
deemed necessary — in order to preserve the unity of the judicial
system — to allow an appeal from its decisions to the High Court, but
" on questions of law only."

The whole intention of the " railway rate " clauses was to secure
the fullest measure of trade equality that was consistent with the
management of the railways by the States, and with the responsibilities
of the States in connection therewith. This was secured by means of
a triple control by the Federal Parliament, the Inter-State Commission,
and the High Court. Preferences and discriminations by a State —
unlike preferences by the Commonwealth — are not directly prohibited
by the Constitution ; but the Parliament is enabled, under its trade
and commerce power, to make laws prohibiting, not all preferences
and discriminations, but preferences and discriminations which are
undue and unreasonable, or unjust to any State. This power, how-
ever, is hedged about by restrictions intended to prevent its jfbuse for
political purposes ; notwithstanding any Parliamentary prohibition, no
rate can be prevented without the independent judgment of the Inter-
State Commission that it is unfair ; nor even then can it be prevented
— unless it applies unequally to the goods of different States — if the
Commission deem it necessary for development. Any prohibition of
preferential rates must, therefore, first be declared by the Parliament,
and cases arising under any such prohibition must be independently
adjudicated on by the Inter-State Commission ; whilst over both
Parliament and Commission stands the Constitution, and — as the final
arbiter and interpreter of the Constitution — the High Court.

Deadlocks. — There was another two days' debate on the deadlock
clause, and a number of amendments were moved which re-opened
the whole question. The first paragraph of the clause, providing for

THE FEDERAL MOVEMENT IN AUSTRALIA. 203

a consecutive dissolution, was dealt with fii-st. Sir John Forrest,
fearino' that the provision for dissolving the Senate would place that
House at the mercy of the Executive, proposed to substitute, in place
of the dissolution of the Senate, a joint sitting in the first instance.
This was negatived by 28 to 15. Mr. Barton proposed to omit the
first paragraph altogether, according to the understanding at Sydney ;
but the friends of the " consecutive dissolution " were detennined to
make another effort to carry their point, and the paragraph — for the
present — was retained by a vote of 28 to 17, the minority being
almost wholly composed of representatives of New South Wales and
Victoria.

The fight between the consecutive dissolution and the simul-
taneous dissolution was brought to an issue by Mr. Symon's amend-
ment to strike out the first part of the second paragraph (providing
for a simultaneous dissolution) and so attach the joint sitting to the
consecutive dissolution. For a time the situation looked serious.
The last division indicated that the smaller States preferred the
consecutive to the simultaneous dissolution, and there was a prospect
that they would follow up their victory by carrying the amendment.
Sir George Turner protested that if this were done the chances of
carrying the Bill in Victoria would be ruined ; and Mr. Reid followed
with a speech which, under a running fire of interjections, developed
considerable warmth. At this stage Mr. Barton secured an adjourn-
ment for dinner and calm reflection ; and on resuming the debate, it
turned out that the danger was imaginary — the amendment being
negatived by 28 votes to 12.

The longest debate was on a proposal by Mr. Isaacs to substitute
a referendum for the joint sitting. The national referendum was, of
course, his ideal ; but he preferred the dual referendum to none at
all, as it would secure the voice of the people — and the experience of
Switzerland supported the view that the voice of the people was
never likely to be contradicted by the voice of the States. A
referendum, he contended, was the only satisfactory solution. Dis-
solution of the Houses was admittedly insufficient ; and the joint
sitting was objectionable because it allowed the principle of equal
representation to invade the House of Representatives, introduced a
unicameral body as final arbiter, and would, in practice, give the
Senate a decisive veto. Mr. Wise replied with a powerful attack on
the proposed application of the referendum, as being unsuited to the
British Parliamentary system, and destructive of Responsible Govern-
ment. Mr. Reid and Mr. Isaacs contended that these arguments
only applied to a referendum, such as that in Switzerland, by way of
a veto on the Parliament ; the question here was how to meet the case
in which Parliamentary institutions broke down. Most of the Vic-
torians, half of the South Australians, and Mr. Reid and Mr.
Carruthers from New South Wales, supported the amendment ; but
the Convention was not to be convinced, and it was defeated by 30
votes to 15.

An amendment by Mr. Higgins, to substitute a bare majority for
three-fifths, was defeated by 27 to 10. The clause was elaborated in
several respects — especially with a view to enabling the joint sitting

204 HISTORICAL INTRODUCTION.

to consider amendments actually made by either House, whilst making
it clear that amendments suggested by the Senate could not be so
considered, and that therefore the joint sitting gave the Senate no
power of indirectly amending money bills. Finally, Mr. Symon
agreed that the isolated provision for a consecutive dissolution was an
excrescence, and ought to be struck out ; and this was done. Sub-
stantially, therefore, the Sydney settlement of the deadlock question
was adhered to.

Other Changes. — During the Melbourne session numerous
amendments of considerable constitutional importance were made.
The legislative authority of the Commonwealth was — after several
unsuccessful attempts — at last extended, on Mr. Howe's motion, to
" invalid and old-age pensions ; " and power was also given to make
laws for the acquisition of property for the public purposes of the
Commonwealth. The provisions as to Privy Council appeals were
considerably altered. To meet the wishes of an influential section of
the mercantile community, who petitioned in favour of preserving the
right of appeal, it was decided not to interfere with the existing right
of appeal direct from the Supreme Courts of the States to the Privy
Council, but to allow an alternative right of appeal to the High Court.
Where, however, the appeal was made to the High Court, its decision
was to be final, in the sense that there was no further appeal as a
matter of right ; and in matters involving the interpretation of the
Federal Constitution, or of a State Constitution, no appeal was
allowed, even as a matter of grace, unless the public interests of some
other part of the Queen^s dominions were concerned. With this
exception, there might be an appeal from the High Court to the Privy
Council by special leave of the Queen in Council ; but the Federal
Parliament might limit the matters in which such leave could be
asked.

The suggestion of the Legislative Council of New South Wales,
that the federal capital should be at Sydney, was met with a counter-
suggestion by Sir Edward Braddon in favour of " some suitable place
in Tasmania," whilst Sir George Turner and Mr. Symon kept up the
joke by suggesting *' St. Kilda " and " Mt. Gambler " respectively.
It was felt that the site of the capital ought to be left for the Aus-
tralian Parliament to choose. The amendment was negatived without
division, and an amendment by Mr. Lyne, to provide that the seat of
Government should be in New South Wales, was withdrawn at the
suggestion of his colleagues. On xthe first re-committal of the Bill,
however, Mr. Lyne pressed his amendment to a division, in which he
was defeated by 33 votes to 5 ; whereupon Mr. Peacock — to show
that the vote was not an expression of opinion that the capital ought
to be in Victoria — divided the Convention on the question that the
capital should be in Victoria — which was defeated by 36 votes to 3.
A proposition by Sir George Turner, that the capital should be
" within federal territory," was then carried by 32 votes to 12.

There was a widespread feeling that the Constitution ought to
contain some recognition of the Deity. At Adelaide numerous
petitions to this effect had been received from various religious bodies,
and Mr. Glynn had proposed to insert in the preamble a declaration

THE FEDERAL MOVEMENT IX AUSTRALIA. 205

that the people " invoking Divine Providence " had agreed to form a
Federal Commonwealth. A majority of the members thought, how-
ever, that the insertion of such words might offend some sections of
the people, and that the Convention ought to abstain from expressing,
by any formula, the religious sentiments of the people. In deference
to this feeling, Mr. Glynn had wished to withdraw the amendment;
but this was objected to, and it was negatived by 17 votes to 11.
Subsequently nine out of the ten Houses of Legislature had suggested
the insertion of some words of recognition, and in Melbourne Mr.
Glynn proposed to insert the words " humbly relying upon the blessing
of Almighty God," which was carried without division. To prevent
any implication arising from these words that the Commonwealth had
an}^ power to impose religious observances, or require religious tests,
Mr. Higgins afterwards proposed the clause which now stands as sec.
116 of the Constitution.

On Saturday, 12th March, after the Bill had been for the fourth
time reported with amendments, the Convention adjourned to enable
the Drafting Committee to revise the Bill. The Committee worked
assiduously, thoroughly revising every clause ; and on Wednesday,
IGth March, the Bill was recommitted a last time, and finally adopted
by the Convention.

Xext day the Convention held its last sitting. A motion by Mr.
Barton, inviting the Premiers of all the colonies to supply copies of
the Draft Constitution to the electors, afforded an opportunity for
those members who were present to express their opinions of their
work. Mr. Barton and Mr. McMillan for New South Wales, Mr.
Deakin and Mr. Trenwith for Victoria, Sir Richard Baker, Mr. Holder
and Mr. Glynn for South Australia, Sir Edward Braddon for Tasmania,
all expressed themselves, with varying degrees of enthusiasm, as
satisfied with the Constitution as a whole, and pledged themselves to
its support. Mr. Reid had already left for home ; so had the West
Australian representatives. Sir George Turner was ill; but his
colleague, Mr. Isaacs, spoke for both, and announced that though they
were not wholly satisfied, they hoped that after thorough consideration
they would be able to recommend the Bill to Victoria. And in putting
the motion, Mr. Kingston, from the Chair, declared his faith in
memorable words : —

" It seems to me that this is not the time when one should stand
trembling on the brink of a distinct declaration as to future policy in
connection with this great movement. I can but speak for myself
alone ; but in regard to this Constitution, I say unhesitatingly that I
accept it gladly. More, I welcome it as the most magnificent Consti-
tution into which the chosen representatives of a free and enlightened
people have ever breathed the life of popular sentiment and national
hope. Mine will be no Laodicean advocacy ; but with such ability as
I may possess, and with the fullest enthusiasm and warmth of which
my nature may be capable — with my whole heart and strength — I
pledge myself to recommend the adoption of this Constitution, daring
any danger and delighting in any sacrifice which may be necessitated
by unswerving devotion to the interests of the Commonwealth of
Australia."

206 HISTORICAL INTRODUCTION.

After some complimentary resolutions, the proceedings terminated
with cheers for the Queen and for Australia, and the Australasian!
National Convention of 1897-8 came to a close.

(14) THE REFERENDUM OF 1898.

In accordance with the requirements of the Enabling Acts, the
Draft Constitution was forwarded to the Governors of the several
colonies by the President of the Convention and by the representatives.
From the rising of the Convention an interval of eleven weeks elapsed
before the popular vote was taken in four colonies — an event which in
New South Wales, Victoria and Tasmania, was fixed for Friday, 3rd
June, and in South Australia for 4th June. Western Australia alone
took no action, but awaited the result of the vote in the other colonies.
In the colonies in which the vote was to be taken, copies of the Draft
Constitution were freely distributed to the electors. In New South
Wales and Tasmania, the Constitution was accompanied by an official
explanation prepared by Mr. R. R. Garran ; in Victoria the Melbourne
Argus published an unofficial explanation by Dr. Quick ; and in South
Australia a summary of its provisions was circulated by the Govern-
ment. The campaign for and against the Constitution began promptly,
and was vigorously conducted by the newspaper press, the federal
representatives of each colony, and prominent politicians of all parties.

New South Wales. — In New South Wales alone was the opposi-
tion really formidable. During the last days of the Convention,
whilst the leading champions of the Bill were still at their task in
Melbourne, a wave of opposition had swept through Sydney. The
first opponent in the field was the Sydney Daily Telegraph, which
cast its whole influence against the Bill, Mr. J. H. Want resigned
his position in the Ministry to fight the Bill with a free hand ; whilst
many members of Parliament, including the whole of the labour
party, threw their influence on the same side, and a strong " Anti-
Convention Bill League " was formed with head quarters in Sydney.
The objections which were made to the Bill may be classed under
three heads — political, financial, and provincial. Criticism of the
political aspects of the Constitution was concentrated chiefly on the
principle of equal representation in the Senate, and the powers
wielded by the Senate — provisions which, it was argued, would stifle
the will of the majority, and enable the small States to rule the large.
In a less degree, the provision for amending the Constitution was
attacked, as making amendment practically impossible, and imposing
a " cast-iron " Constitution for all time. A further objection, which
consolidated the greater part of the Parliamentary labour party
against the Bill, was the rejection of the Referendum — their favourite
political institution — as a means for settling deadlocks. The financial
objections were that the Bill necessitated the raising of an enormous
customs revenue, and consequently an immense increase of taxation
in New South Wales ; that under the federal tariif New South Wales
would contribute an undue proportion of the revenue, and that after

THE FEDERAL MOVEMENT TX AUSTRALIA. 207

the expiration of the book-keeping period thei*e was every proba-
bility that her share of the surplus would be " scrambled for " by the
other colonies, to meet their pressing needs. The Braddon clause,
under the alliterative nickname of the " Braddon Blot," was especially
denounced ; and apart from the strong case that could be made out
against it on its merits, it was made the subject of ingenious mis-
interpretation— such, for instance, as the constantly reiterated
assertion that it required the raising of " four times as mucli taxation
as is necessary."

These arguments, moreover, were reinforced by others which
were purely provincial and anti-federal — though seldom avowedly so.
Distrust of Victoria, and the other colonies — an alleged " conspiracy "
to make Melbourne the federal capital, to annex the trade of Riverina,
and to steal the rivers of Xew South Wales — formed the stock-in-
trade of that section of the Anti-Bill party which was really anti-
federal, and which appealed rather to prejudice than to reason. The
stronghold of this section was in Sydney. What may be called the
" old Sydney " party had never been enthusiastic for Federation.
The intercolonial jealousies and rivalries of a generation ago had left
their mark, and the motives of the other colonies were objects of
suspicion. It was thought that the claims of Xew South Wales as
the mother-colony, and of Sydney as the metropolis of Australia,
had not been duly recognized, and in fact Xew South Wales was
looked upon as the destined victim of scheming neighbours. Tiiese
fears, partly a survival of empty prejudices, were in part also do© to
a short-sighted view of the trade necessities of New South Wales.
Historical circumstances which it is unnecessary to recapitulate had
left Xew South Wales with outlying territories southwards, west-
wards, and northwards, which were geographically nearer to
Melbourne, to Adelaide and to Brisbane than to Sydney ; and many
people earnestly believed that it was necessary in the interests of
Sydney — and tried hard to believe that it was necessary in the
interests of the whole of New South Wales — to keep an octopus grip
on the whole trade of this territory, no matter at what inconvenience
to the producers and cost to the public. The doctrine not unreason-
ably preached by Victoria and South Australia, that " trade should
flow in its natural channels," was held to be rank heresy ; and no
doubts were entfjrtained that the merits in the great battle of railway
rates were wholly with X^'ew South Wales. Viewed from this stand-
point, the carefully contrived compromises as to railways and rivers
seemed to be a traitorous surrender of the rights and privileges of
New South Wales, and were denounced accordingly in no measured
terms.

The " Anti-Billites " were first in the field, but the champions of
the Constitution were not long in following. Mr. Barton, and six of
his fellow-representatives at the Convention, were untiring in
advocacy : federalists from the freetrade and protectionist parties
alike rallied energetically ; the Federation Leagues throughout the
colony helped so far as their non-party organization enabled them to
do so ; and a strong campaigning body, called the New South Wales
Federal Association, was organized. Of the Sydney daily press, the

208 HISTORICAL INTRODUCTION.

Morning Herald and the Evening News supported the Bill, and the
great majority of the provincial press followed suit.

The friends of the Bill had the advantage in debating strength,
and had all the weight of national sentiment on their side; its enemies
had provincial prejudices and vested interests to help them, and had
also the advantage, which the critics of a definite and detailed piece
of legislation always have, of being able to choose innumerable points
of attack, and challenge the federalists to justify the Bill clause by
clause, and line by line. The issue was doubtful, and the great
question was — on which side would Mr. Reid throw his great influence
and his unrivalled powers as a platform speaker ? As Premier of the
leading colony, and the man at Avhose invitation the process of framing
the Constitution had been entered upon, he had a heavy responsibility;
and it was no secret that he was not wholly satisfied with the Bill.

Mr. Reid kept his own counsel until 28th March, when he
addressed a vast meeting at the Sydney Town Hall. He analyzed the
Bill from beginning to end, criticized unsparingly what he thought to
be its defects, touched more lightly on its merits, and ended Avith a
dramatic declaration that, in spite of all his criticisms and objections,
he personally could not be " a deserter to the cause ; " that he would
vote for the Bill himself — words which were greeted with an outburst
of enthusiasm — but would abstain from any recommendation to the
electors, one way or the other. Of course, he was claimed b}* both
sides — the " Billites " pointing to his vote, and the " Anti-Billites *' to
his arguments. During the campaign he only made three other
speeches — at Goulburn, Bathurst and Newcastle; and though he still
declined to oifer advice, his influence undoubtedly was cast against
the Bill. Subsequently Mr. Lyne and Mr. Brunker declared against
the Bill.

As time went on, the points of attack were multiplied; a word
here, and a phrase there, were culled out to show the iniquity of the
measure. But the main line of criticism remained the same. Equal
representation would be "the death-knell of majority rule;" the
"dead-lock fraud ^' would be utterly ineffective; the Inter-State
Commission would hand over the railways of New South Wales to the
other colonies; the federal capital would be in Victoria. The real
strength of the attack, however, was directed against the financial
clauses. It was here that Mr. Reid's criticisms had b^en most telling;
and rival experts — Mr. Edward Pulsford and Mr. Bruce Smith for the
Bill, Mr. R. L. Nash and Mr. Coghlau against it — eng'aged in a duel
of figures which made the bewildered electors ask " What is truth ? "
The Anti-Bill statisticians maintained their forecast of an impossibly
high tariff, and heaped ridicule upon the unfortunate " Braddon blot;"
their opponents challenged their assumptions, condemned their Fore-
casts as unreliable guesswork, and maintained that the Bill did not
require excessive taxation. The undeniable fact, which thie freetraders
had to face, was that the federal tariff would be framed to produce
more revenue than the existing tariff of New South \Wales — not
because the Constitution required it, but because the pec^ple of Aus-
tralia would require it; and this, from the freetrade a^.pect, was a
point scored against Federation. At last the Governmer|it appointed

THE FEDERAL MOVEMENT IN AUSTRALIA. 209

a Commission, consisting of Mr. J. Russell French (a banker whose
federal views were unknown), Dr. MacLaurin (a strong critic of the
Bill), and Mr. Bruce Smith. Witnesses were examined, and on 17th
May a report was presented which — like Mr. Reid's speeches — was
claimed bj both sides as a "triumph." In reality it told against the
Bill ; for, though it did not bear out the figures of the extreme
alarmists, it adopted some of their methods, to which it gave a semi-
official authority.

The two sides were thus left as hopelessly at issue as before. On
one point only was there no substantial dispute — that the new ex-
penditure for federal establishments would be an inconsiderable item,
which might be set down — after allowing a liberal margin — at
£300,000 a 3'ear for all the colonies. But the opponents of the Bill
proceeded to forecast the necessity of ruinous taxation by the follow-
ing argument. They first calculated the " net deficiency " which each
State would have after Federation, supposing no customs or excise
revenue whatever were returned by the Federal Government. This
they arrived at by simply subtracting the expenditure of which the
State would be relieved from the revenue of which it would be
deprived. They then assumed that this " net deficiency " of each
State was an absolute " requirement " of the State, which must be
made up to it by the Commonwealth out of customs and excise
revenue. This involved the assumption that the federal tariff must
be screwed up to meet the requirements of the weakest State ;
because, under the distribution clauses, each State could only get
back the amount of its own contribution — or rather, the balance of its
contribution after deducting its share of the federal expenditure.
They then *' calculated " the relative percentages which each State
would contribute to a common tariff. The first of these calculations
— made for the Adelaide Convention — was based frankly on the
existing import figures of the various colonies under their widely
differing tariffs ; and of course the result of applying, say, the
Victorian protectionist tariff to the actual imports of New South
Wales under a freetrade system gave a startlingly high forecast of
the contributions for the latter colony. The absurdity of the assump-
tion led to considerable modifications of these estimates ; but it was
still contended that New South Wales would contribute an abnormally
high percentage of revenue, at least for many years. The conclusion
of this elaborate argument was that a tariff high enough to squeeze
out of (say) Tasmania enough revenue for her wants would inflict a
huge burden of utterly unnecessary taxation upon New South Wales;
and though the bulk of this would find its way back to the Treasurer
of New South Wales, it would leave him with the demoralizing
temptations of an unmanageable surplus. In this argument — which
was waged at immense length in the newspapers — the " Braddon
Blot" had no place whatever ; that was reserved for another line of
attack.

The friends of the Bill replied that the whole argument rested
on a series of false assumptions. The fixed " deficiencies " were
imaginary, and involved the impossible task of foretelling the revenue
and expenditure of each State four or five years in advance. There

210 HISTORICAL INTRODUCTION.

was no justification for assuming that the States could not diminish
their " requirements " by savings in expenditure ; or that any State
which^ under a reasonable federal tariff, had a provincial deficiency,
could not meet it by provincial taxation. The estimates of the per-
centage of New South Wales contributions were excessive, and the
figures were unduly swollen by refusing to take into account the
probable savings due to Federation, whilst loading the expenditure
with the most liberal margins for contingencies. In short, it was
argued that the Commonwealth would have a perfectly free hand in
framing a tariff ; and that under a very moderate revenue tariff each
State would be left in a perfectly solvent position. It was not denied
that New South Wales would be submitted to some additional taxation
through the customs ; but that was the necessary result of a uniform
tariff, and was not due to the financial scheme of the Bill. Moreover,
the favourable position of New South Wales as regards taxation was
not due to superior wealth, but to the fact that she was living on
capital in the shape of the revenue from the alienation of land ; she
was not at present taxed up to her real requirements, and an increase
of taxation revenue would render a sounder system of finance
possible.

Mr. Nash frankly admitted that the faults of which he complained
were inseparable from the scheme of Federation proposed, and he
advocated, as the only solution, a system which would include the
immediate federation of railways and debts. These views, however,
were not popular in New South Wales, and most of the critics, while
having no suggestions of their own to offer, tacitly assumed that a
better way was available. They were convinced that a better Bill
could be " fixed up in half an hour " — but they had not half an hour
to spare.

The progress of the fight showed that the objectors and doubters
were in great force, especially in and near the metropolis. Along the
borders, and especially in the Riverina district, the disadvantages of
disunion were so apparent that criticism had less weight, and there
was a general disposition to accept with enthusiasm the work of the
Convention.

Victoria. — In Victoria, the fight was a one-sided affair from the
outset. This fact — which anti-federalists in the mother-colony ascribed
to an eagerness to "loot New South Wales ^' — was really due to quite
different causes. In the first place, the sentiment of nationality was
far more developed and better organized in the southern colony. The
credit of this was chiefly due to the Australian Natives' Association —
an institution which had received its chief development in Victoria,
and which, on the basis of a mixed friendly society, mutual improve-
ment society, and national association, extended to every corner of
the colony, and had immense power by reason of its organization and
its enthusiasm. Founded in 1871, it was already a great power in
politics, and a recognized ladder to a Parliamentary and Ministerial
career. Federation had long been its watchword; it had urged
Governments to action, suggested schemes of its own, and lent
encouragement to the schemes of others. It had produced the
Bendigo scheme, the germ of the Federal Enabling Acts under which

THE FEDERAL MOVEMENT IN AUSTRALIA. 211

the Constitution had been framed ; it had contributed three represen-
tatives to the Convention — Mr. Deakin, Mr. Peacock, and Dr. Quick.
And finally, at a critical juncture, on the eve of the adoption of the
Constitution by the Melbourne Convention, when the Age advocated
the Fabian policy of caution and delay, and when the Turner Ministry,
or at least some members of it, seemed to hesitate, the Association at
its annual conference held at Bendigo, stimulated by the inspiring
eloquence of Mr. A. Deakin and Mr. -J. L. Purves, announced its
support of the Bill with a declaration of triumphant enthusiasm that
left no doubt as to the result.

Another reason for the comparative weakness of the opposition
in Victoria was that the financial obstacles were less than in New
South Wales. New South Wales, in the matter of customs taxation,
occupied a position at the extreme end of the group ; Victoria was
near the middle. It was apparent that a tarifE of approximately the
productiveness of the Victorian tariff would fairly meet the needs of
the Commonwealth; and though that productiveness might be
attained by a moderate revenue tariff as well as by the existing pro-
tective tariff of Victoria, the fears of producers that their protection
might be reduced affected few pockets as compared with the fears
of tax-payers in New South Wales that their taxation would be
increased.

There was, nevertheless, a substantial Anti-Bill party in Victoria,
led by Mr. Higgins — the only one of the ten Victorian representatives
who did not support the Bill. His objections were almost wholly
from a constitutional standpoint, and were directed against equal
representation in the Senate, and against the restrictions upon the
amendment of the Constitution. He was supported by a section of
the labour party, which was however hopelessly divided — seeing that
Mr. Trenwith, the ablest and most influential of the party's leaders,
was warmly advocating the Bill. These were the most effective
criticisms used against the Bill in the metropolitan centres ; but in
the country districts the chief concern was over the abolition of the
stock tax, which would have to go when intercolonial freetrade began.
The farmers had an unbounded belief in the extra value added to
their land and stock by this tax ; and Mr. Allan McLean, its chief
apostle, conducted a vigorous campaign agaiust the Bill.

There was some dissatisfaction in Victoria with the " railway
rate " clauses, which the Premier and Attorney-General of Victoria —
in spite of the precisely opposite fears expressed in New South Wales
— feared would unfairly hamper Victorian competition for the
Riverina trade, whilst leaving New South Wales free to do as she
liked, under the pretext of developing her territory and making her
railways pay. However, after a report from Mr. Mathieson, the
Commissioner for Railways, which went to show that the revenue
loss, on the most unfavourable interpretation of the Bill, would not
be considerable, the Victorian Ministry announced their unanimous
support of the Bill.

A few vested interests felt some mild alarm about bounties and
protective duties. The clause prohibiting the granting of bounties
by the States, except with the consent of the Federal Parliament,

212 HISTORICAL INTRODUCTION.

had in New South Wales been thought to hide a cunning conspiracy
to enable its provisions to be evaded, and Victorian bounties to be
perpetuated ; in Victoria it was complained of as a death-blow to the
few bounty-assisted industries in existence. Nor did the Victorian
Anti-Billites share the confidence of their brethren across the Murray
that the federal tariff must inevitably be protective ; and they would
fain have seen some guarantee against the predominance of freetrade
views in the Commonwealth.

All these arguments were overwhelmingly answered by the
federalists, who, strong in numbers, in debating ability, and in
enthusiasm, swept the country with an unbroken series of campaign-
ing triumphs. Victoria as a whole had confidence in the Conven-
tion, and confidence also in the ability of the Australian people to
work out their own destiny under a free Constitution. The federal
compromises were accepted as necessary conditions of union, and the
fears of the Anti-Billites were outweighed by the obvious commercial
advantages of Federation, and by the strong sentiment in favour of
national institutions. The Victorian newspapers almost unanimously
supported the Bill. The Argus, the Australasian, and the Evening
Herald in the metropolis, and the Bendign Advertiser, the Bendigo
Independent, the Bendigo Evening Mail, the Ballarat Courier, the
Ballarat Star, the Geelong Advertiser, the Geelong Times, the Gipps-
land Times, and other country journals gave the Bill powerful
advocacy. The Age and the Leader were not opposed to federation,
but anxious to promote the improvement of the Bill. Although
doubtful and critical at first, the Age eventually, in consider-
ation of the many democratic features of the Constitution render-
ing it moi'e liberal even than the Constitution of Victoria, recom-
mended its acceptance with the hope of securing its reform at a
later stage.

South Australia. — In South Australia all the federal representa-
tives united in an appeal to the electors to vote for the Bill. The
chief difficulties that had to be met were the fears that the cost would
be excessive, and that the rights and interests of the less populous
States would be unduly subordinated to the mass vote of the majority.
But the argument of the advantages of union, and especially the
benefits arising from intercolonial freetrade, prevailed ; and the issue
was never really in doubt.

Tasmania. — In Ta/smania there was widespread dissatisfaction, at
the outset, with the provisions limiting the powers of the Senate,
which were thought to endanger the interests of the smaller States;
and it was also feared that, notwithstanding the Braddon clause, there
were not sujQftcient " guarantees " that the surplus returned to Tasmania
would enable her to meet her provincial obligations. However, the
federal representatives threw themselves courageously into the fight,
and their efforts were rewarded with complete success.

The Vote op the People. — The result of the voting in the
four colonies for and against the draft Constitution was as
follows : —

THE FEDERAL MOVEMENT IN AUSTRALIA.

213

N.S.W.

Victoria.

S. Australia, j

Tasmania.

Total.

For

Against...

71,595

66,228

100,520
22,009

35,800
17,320

11,797
2,716

219,712
108,363

Majority for the^
Constitution . . . !

5,367

78,421

18,480

9,081

111,349

There was thus a majority for the Bill in each of the four colonies.
In Victoria, South Australia, and Tasmania, the majorities were
decisive ; but in New South Wales not onlv was the majority a slender
one, but the total affirmative vote fell short by 8,405 of the 10,000
minimum required by the Federation Enabling Act Amendment Act
of 1897. In Xew South Wales, therefore, under the provisions of the
Act, the barely victorious Bill was " deemed to be rejected " — the
prescribed effect of which was to be that in New South Wales " no
further action shall be taken pursuant to this Act." In other words,
the whole statutory process, so far as New South Wales was concerned,
was at an end.

(15) EVENTS IN NEW SOUTH WALES.

The Task Resumed. — Had the federalists in New South Wales
been in an actual minority, the discouragement would have been
serious ; but their majority, slender as it was, spurred them to fresh
exertions. On the evening of 3rd June, an accidental duplication of
some of the telegraphic returns had caused the coveted 80,000 to be
posted at the Sydney Morning Herald office, and for a few minutes
federalists were congratulating themselves on having won the battle.
In the first disappointment of the awakening, some brave words were
said about repealing the Act requiring an 80,000 minimum; but
calmer judgment showed the unwisdom of " cramming the Bill down
the throats " of a minority, many of whom were rather fearful than
hostile. It was clear that some effort must be made to secure amend-
ments which would dispel the fears of opponents, and diminish the
opposition ; but Mr. Barton and his following wisely held their hands
until Mr. Reid, as Premier of the colony, should open negotiations.

This Mr. Reid promptly did. The day after the referendum he
telegraphed to the other Premiers inviting them to a Conference with
a view of amending the Bill to meet the wishes of New South Wales,
and suggesting that the amendments, when agreed upon, should
be transmitted ^\4th the draft Constitution to the Imperial Govern-
ment. The Premiers did not receive this suggestion with favour.
Their own colonies had given overwhelming majorities for the Bill,
and they resented the idea that, at the instance of a minority in
-New South Wales, they should be asked to reopen the question —
especially as New South Wales was on the eve of a general

214 HISTORICAL INTRODUCTION.

election, and it remained to be seen whetlier that colony could
not yet be brought into line. The Premiers of South Australia,
Western Australia, and Tasmania, refused point blank to confer;
whilst Sir George Turner, in Victoria, replied diplomatically that
it would be well for Mr. Reid to intimate what amendments he
desired. Mr. T. J. Byrnes, the Premier of Queensland, whom Mr.
Reid had also consulted, expressed his willingness to confer; but the
attitude of the other Premiers made it clear that nothing could be
done till after the New South Wales elections.

The expiring Parliament met on 21st June, and the Governor's
speech disclosed Mr. Reid's federal programme. After reciting the
result of the Referendum, and the de jure rejection of the draft Con-
stitution, the speech proceeded : —

" The Government are not prepared, however, to abandon their
efforts to arrive at a satisfactory removal of those features of the Bill
which have prevented the people of this country from voting more
largely in its favour, and which have caused so many thousands of
the electors to vote against it.

"My advisers are, therefore, anxiously engaged upon the
preparation of proposals to modify the Convention Bill in certain
respects. These will shortly be submitted in clear and definite tei*ms
to the electors of New South Wales.

" They will include : —

1. An objection to the principle of equal representation in the

Senate, which, if not altered, must be accompanied by the
removal of the stipulation requiring that a majority vote
at a joint sitting of both Houses, to be effective, shall
consist of three-fifths of the members present ; or, failing
that, the principle should be qualified by a provision for a
national referendum instead of a joint sitting.

2. Some of the financial provisions to be recast, and the Braddon

clause omitted altogether,

3. Money bills not to be amended by the Senate.

4. The same protection for the territorial rights of each State,

as there is for the representation of each State in the
federal Parliament, and this should include more definite
provisions with regard to inland rivers.

5. Seat of Government — instead of the proposal in the Bill,

adoption, in a slightly modified form, of the plan followed
in the Canadian Constitution.

6. It is also considered that the appellate jurisdiction should be

remodelled."
The bulk of the session, which only lasted three weeks, was taken
up, m both Houses, with the Address-in-Reply. The main attack
upon the Government programme came from Mr, Barton and Mr,
O'Connor in the Legislative Council. They objected strongly to the
demands of New South Wales being stated in the form of an
ultimatum before conference, and maintained that the Government
ought to go untrammelled into conference, and negotiate for the best
terms possible. Moreover, they challenged Mr. Reid's good faith in
the matter, and especially pointed to the fact that Mr. Want — who

THE FEDERAL MOYEMENT IN AUSTRALIA. 215

had left the Ministry to lead the opposition to the Bill, and whose
criticisms had a decidedly anti-federal complexion — had since the
Referendum been readmitted to the Ministry. As regards amend-
ment in the draft Constitution, they took this position. They believed
that the Bill was a good and a fair one, and had heartily recommended
it for acceptance. With some of the provisions they had never been
fully in accord, but they had loyally accepted the whole as the best
■compromise available. It now appeared that a large minority of the
people were dissatisfied ; and they recognized not only that an effort
must be made to secure amendments which would meet the chief
objections made, but also that the result of the vote — showing as it
did that unless some amendments were made it would be difficult to
secure the adherence of New South Wales — made concessions possible
which previously would have been impossible. Mr. Barton therefore
approved of asking for reconsideration of the Bill with a view to
three amendments — the removal of the three-fifths majority at the
joint sitting, the omission of the Braddon clause, and the location of
the capital m New South Wales.

The General Election. — Parliament was dissolved on 8th July,
and the campaign began at once. Mr. Reid and the Ministerialists
took the field as the " Liberal Federal Party," whilst Mr. Barton led
the Opposition on behalf of the " National Federal Party." Federa-
tion thus became, for the first time, a question of party politics ; and
curiously enough, both parties seemed to be fighting for substantially
the same thing — the draft Constitution, with a few amendments.
The amendments foreshadowed by Mr. Barton were indeed only three,
as against Mr. Reid's seven ; but that was not the real distinction
between the parties. The real difference was of a twofold kind,
involving a question of federal attitude, and a question of leadership.
In the first place, Mr. Reid and his following were definitely hostile to
the Bill as it stood, and demanded substantial amendments as a con-
dition of its acceptance. Mr. Barton and his following had been, and
still were, ready to accept the Bill as it stood ; but urged amendments
with the double view of making it a still better Bill and of conciliating
opposition. Consequent upon this difference of attitude, the Reid
party urged that Mr. Reid stood for the interests of New South
Wales, and Mr. Barton for those of the other colonies — that Mr.
Reid's demands would meet acceptance, whilst Mr. Barton's " nego-
tiations " meant surrender. The Barton party replied that no agree-
ment could be reached by a policy of dictating terms; that Mr.
Barton, as a persona grata to the other colonies and the trusted leader
of the federalists, would be able to make better terms than Mr. Reid ;
and that the interests of New South Wales, as well as those of
Australia, would be safe in his hands.

The main issue, however, was mixed up in every electorate, not
only with the personal claims of the candidates, but with the old lines
of party cleavage. The " fiscal issue " was indeed supposed to be
sunk ; but the fact that in the Ministerial party freetraders pre-
ponderated, and in the Opposition party protectionists, showed that
the allegiance of many candidates was influenced by the old party ties.
The same thing undoubtedly held true of the electors, and stood in
the way of a " straight out " issue on the federal programme.

216 HISTORICAL INTRODUCTION.

The result of the general election, which took place on 27th
July, was very evenly balanced. Mr. Reid himself defeated Mr.
Barton in the King Division of Sydney ; but his previous large Par-
liamentary majority was reduced to a narrow majority of about four —
including the labour party — whilst three Ministers lost their seats.
But though neither party could claim a triumph. Federation had
undoubtedly won all along the line. The preceding Legislative
Assembly, though not avowedly anti-federal, was so trenchantly
critical of the whole Commonwealth scheme as to be, m effect, hostile
to Federation. In the new Assembly, every member stood pledged to
the main principles of the draft Constitution, and the debatable
points were narrowed down to a small schedule of amendments. The
unanimity was perhaps more apparent than real. Both parties
numbered adherents whose federal sentiment was little more than a
polite concession to the necessities of party unity. Still, the fact that
there were two federal parties and no anti-federal party — nor even an
avowedly anti-federal candidate for election — showed the immense
development of popular feeling in New South Wales. Federation
may be said to have been assured from the date of the election.

The Federal Resolutio^is. — Parliament met on 16th August, and
after the adoption of the Address-in- Reply, Mr. Reid introduced his
federal resolutions. The first resolution affirmed the desire of the
House that " steps should be taken without delay, in conjunction with
the other colonies, to bring about the completion of federal union."
The second resolution affirmed the desire of the House ''that the
other colonies should agree to reconsider those provisions of the Bill
most generally objected to in New South Wales,^' and proceeded to
" submit for the consideration of the other colonies " the following
propositions : —

(a) Representation in the Senate. — That if equal representation be
insisted upon, the provision for a three-fifths majority at a
joint sitting of both Houses should be removed, and that a
simple majority should decide; or that the provision for a
joint sitting be replaced by a provision for a national
referendum.

{b) The 87th clause, known as the Braddon clause. — That this
clause should be removed from the Bill.

amended, and provision made in the Bill for the establish-
ment of the federal capital in such place within the
boundaries of New South Wales as the Federal Parliament
may determine.

(d) The boundaries of States. — That better provision should be

made against the alteration of the boundaries of a State
without its own consent — namely, by the protection
afforded by clause 127, as to the representation of States.

(e) Inland rivers. — That the use of inland rivers for purposes of

water conservation and irrigation should be more clearly
safeguarded.

THE FEDEKAL MOVEMENT IN AUSTRALIA. 217

(/) Money Bills. — That there should be a uniform practice iu
respect to such Bills, namely, that provided in the case of
taxation Bills and Bills for the ordinary annual services of
the Commonwealth.

{g) Judicial appeals from States. — That the mode of appeal from
the Supreme Courts of the States should be made uniform,
namely, the appeal should either be to the Privy Council
or to the High Court, but not as at present, indiscrimi-
nately to either.

The third resolution dealt with the financial system of the Bill,
and supplemented the suggestion for the removal of the Braddon
clause as follows : —

(3) Although prepared, for the sake of union — if it be placed in
other respects upon a fair and just footing — to accept the
financial system embodied in the Bill, with the one excep-
tion mentioned, this House earnestly invites further
inquiry into, and a more thorough consideration of, the
financial clauses, regarding as evils to be avoided if possible
excessive burdens of taxation, a prolonged system of book-
keeping, uncertainty as to the amount of surplus to be
divided, and uncertainty as to the method of distributing
it among the States.

It was recognized on all hands that these resolutions were
studiously moderate in tone, and that the language of demand had
been renounced in favour of the language of request. Nevertheless,
Mr. Barton still feared that the difference might be merely one of
form, and that under the velvet paw of " negotiation " might lurk the
claw of dictation. He still objected to the requests of the House being
embodied in a "placard," and thought that the Government ought
merely to have defined its policy and then asked the House for
authority to confer. However, the resolutions were debated in the
House and in Committee, and were passed, with the addition of
requests for the consideration of the two following propositions (the
first moved by Mr. J. S. T. McGowen, leader of the Labour Party,
and the second by Mr. Henry Copeland) : —

(h) The alteration of the Constitution. — That clause 127 should
be altered to provide : —

1. That any proposed alteration of the Constitution,

approved by both Houses and a national
referendum, should be submitted to the
Governor-General for the Queen's assent.

2. That, where a proposed alteration has been affirmed

in two succeeding sessions by an absolute
majority in one House, but rejected by the
other, such proposed alteration should be
submitted to the national referendum.

218 HISTORICAL INTRODUCTION.

3. That, respecting proposed alterations transferring
to the Commonwealth any of the powers
retained by the several States at the date of
their acceptance of the Constitution, such
alteration should not take effect in any State
unless approved by a majority of electors in
such State voting.
(i) Number of Senators. — That the number of Senators from
each State should be increased from six to not less than
eight. Twenty Senators, including the President or
Chairman of Committees, to constitute a quorum.
In the Legislative Council the same resolutions, with Mr.
McGowen^s and Mr. Copeland's propositions attached, were moved
by Mr. J. H. Want, the Attorney-General. After debate, they were
passed with the following substantial modifications: — (1) The sugges-
tion of a national referendum as an alternative to a joint sitting was
struck out. (2) The proposition that the federal capital should be in
New South Wales was — by a majority of one — amended so as to
require that the capital should be in Sydney. (3) As to rivers, the
Council asked that their use for irrigation and conservation, instead
of being merely " more clearly safeguarded," should be "^ preserved
for their respective colonies." In Resolution 3, the declaration that
the House was " prepared for the sake of union to accept the financial
system embodied in the Bill" was struck out. Mr. McGowen's
proposal for the alteration of the Constitution was also struck out,
and replaced by a resolution objecting to the plan of submitting
alterations of the Constitution to a Referendum, but asking that any
alteration transferring State powers to the Commonwealth should not
take effect in any State without the consent of both Houses of
Parliament of that State.

(16) THE PREMIERS' CONFERENCE, 1899.

No attempt was made to harmonize the resolutions of the two
Houses; and on 29th January, 1899, the Premiers of all the six
colonies met at Melbourne, at Mr. Reid's request, to consider the
suggestions made by New South Wales. A noteworthy feature of
this meeting was that Queensland, which since the Hobart Conference
of 1895 had stood aloof from the movement, was represented by its
new Premier, Mr. J. R. Dickson. The conference was held behind
closed doors, and lasted till 2nd February, when a unanimous agree-
ment was arrived at which all the Premiers agreed to submit to their
respective Parliaments for reference to the electors.

The Joint Sitting. — The first request of New South Wales was
almost wholly complied with. The requirement of a three-fifths
majority at a joint sitting was done away with ; and replaced, not
indeed by a simple majority, but by " an absolute majority of the
total number of the members of both Houses."

THE FEDERAL MOVEMENT IN AUSTRALIA. 219

The Frs'A^'CiAL Clauses. — The financial question proved the
hardest of all to solve, and nearly caused a break-up of the Con-
ference. Several brand-new financial schemes were offered, but none
of them met with general acceptance, and the Conference, like the
Convention, was obliged to fall back on the scheme in the Bill. As
to the Braddon clause, every one was willing to let it go, if any
substitute could be found ; but every cure seemed worse than the
disease. The Conference reported as follows : —

" The Premiers have given full consideration to the objections
which have been urged against this clause, and have also considered
other proposals which have been suggested for the purpose of giving
some security to the States that a reasonable amount of the revenue
collected in the States shall be returned to them, while, if possible,
avoiding excessive burdens of taxation, a prolonged system of book-
keeping, uncertainty as to the amount of the surplus to be divided,
and uncertainty as to the method of distributing the surplus amongst
the States.

" The Premiers consider that all the other proposals are open to
more serious objections than those which have been raised against the
clause as it appears in the Bill; but with a view of meeting the
objections as far as possible, consistently with the safety of the
States, the Premiers are of opinion that the operation of the clause
should not continue after a period of ten years if the Parliament then
desires to repeal or alter it ; and that, in addition, power should be
granted to the Parliament to deal with any exceptional circumstances
which may from time to time arise in the financial position of any of
the States."

To give effect to these opinions, they limited the Braddon clause
to " a period of ten years after the establishment of the Common-
wealth, and thereafter until the Parliament otherwise provides ; " and
added a new clause (sec. 96) empowering the Parliament, during the
same period, to grant financial assistance to any State.

Tbe Federal Capital. — With regard to the Federal Capital, the
Conference reported thus : —

" It is considered that the fixing of the site of the capital is a
question which might well be left to the Parliament to decide ; but in
view of the strong expression of opinion in relation to this matter in
Xew South Wales, the Premiers have modified the clause, so that
while the capital cannot be fixed at Sydney, or in its neighbourhood,
provision is made in the Constitution for its establishment in New
South Wales at a reasonable distance from that city."

Accordingly the request of Xew South Wales, that the capital
should be in that colony, was granted ; but with two conditions which
Victoria insisted upon : (1) that it should not be within 100 miles of
Sydney; (2) that the Parliament should sit at Melbourne until it met
at the seat of Government.

BouxDAEiES OF States. — The protection asked for by Xew South
Wales against the alteration of the boundaries of any State without
its consent was given, by requiring that any law or constitutional
amendment to that effect should be submitted to the electors of the
State affected, and should require the assent of a majority of those
voting.

220 HISTORICAL INTRODUCTION.

Alteration op the Constitution.— With regard to the suggested
amendments in the mode of altering the Constitution^ the Premiers
reported as follows : —

" The Premiers agree that, where there is a difference of opinion
between the two Houses as to Avhether the people should have the
opportunity of deciding if any alteration should be made in the pro-
visions of the Constitution, one House should not have the power to
prevent the question being decided by the people. They have there-
fore endeavoured to provide a means whereby, after full discussion
and reasonable delay, the matter may be referred from either House
to the electors. The Premiers are unable to agree that the decision
should rest on the result of a National Referendum, it being considered
of vital importance that any alteration in the Constitution which the
States have agreed to accept should only be made if a majority of the
electors of the Commonwealth and also a majority of the electors in
a majority of the States determine that it is proper to make such
alteration."

Accordingly the provision was inserted which enables a proposed
law for the alteration of the Constitution, if twice passed by either
House of the Federal Parliament, to be submitted to a Referendum
notwithstanding the dissent of the other House.

Other Suggestions. — As to Rivers, Money Bills, and Judicial
Appeals, the Premiers after fully considering the proposals of New
South Wales did not find it practicable to recommend any alteration
of the Bill ; whilst they did not regard as desirable the proposed
increase in the number of Senators. But in addition to the amend-
ments made at the instance of New South Wales, one was agreed to
at the instance of Queensland. To meet the peculiar conditions of
that colony, it was provided that if Queensland joined as an Original
State, the Parliament of that State might, pending federal legislation,
divide the State into electorates for the purposes of Senate elections.

Result op the Conference. — As a result of the Conference,
therefore, seven amendments were made in the Bill — six at the
instance of New South Wales, and one at the instance of Queensland.
The three main requests of New South Wales had each been met
by a substantial concession. The abolition of the three-fifths
majority was a great extension of the actual, as well as the moral,
efficiency of the deadlock clause. The provision as to the capital
prevented the possibility of the permanent seat of Government being
fixed anywhere but in New South Wales. As to the Braddon clause
— the temporary retention of which was a general surprise, for it had
few friends — it was certainly a great advantage to diminish its rigidity
by placing it, after ten years, at the mercy of the Parliament, and
thus obviating the necessity for a constitutional amendment if its
removal should prove desirable.

THE FEDERAL MOVEIMENT IN AUSTRALIA. 221

(17) ADOPTION OF THE CONSTITUTION, 1899.

The Position in New South Wales. — A welcome piece of news
to federalists was Mr. Eeid's prompt announcement that he had done
with doubt and indecision, and would support the amended Bill with
all his powers. It soon became evident, however, that the opposition
in New South Wales would be strong. The Sydney Daily Telegraph,
on second thoughts, took up as uncompromising an attitude as ever,
and the opposing forces began to consolidate themselves. Their cry
was that the " demands '* of New South Wales had been trifled with,
and that the Bill was in substance "the same old Bill." The absolute
majority at the joint sitting was denounced as being little if any
better than the three-fifths majority, and elaborate calculations were
made to show how New South Wales would invariably be defeated if
most of her representatives absented themselves. The "Braddon
Blot " was the subject of renewed attack, and its limitation in point of
time was made light of. The 100 mile limit for the federal capital
was complained of as a gross insult to Sydney — the corresponding
"insult" to the rest of Australia, implied in the demand made by
New South AVales, being ignored. The provision was in fact a most
unfortunate one, because it aroused fierce opposition in the metropolitan
and suburban area — the very district which it was most important to
conciliate. In particular the provision for the temporary meeting of
Parliament in Melbourne was attacked as hiding a deep conspiracy to
establish the seat of Government there permanently, and it was
roundly stated that Mr. Reid had been "outwitted" by the cunning
of the other colonies. The real fight, however, centred round the
financial clauses, against which all the old arguments were reiterated,
but with greater wealth of detail.

The Exablixg Bill. — The New South Wales Parliament met on
21st February, and the new Enabling Bill was at once introduced in
the Assembly. It provided for the submission of the amended Con-
stitution to a Referendum, at which a simple majority was to decide ;
and it allowed any holder of an elector's right to vote at any polling-
booth in the colony, whether or not he was qualified as a Parliamen-
tary voter for any electorate. In the Assembly no difficulties were
met ; even the malcontents admitting that the Constitution must be
submitted to the people, and reserving their hostility for the present.
In Committee, amendments were moved to make acceptance by an
" absolute majority " of all the electors necessary ; to make the
inclusion of Queensland a condition of New South Wales entering the
Federation; and to take an alternative referendum on the Bill as
amended by the Premiers, and on the Bill " as amended by the Legis-
lative Assembly of New South Wales." The object of all these
amendments, however, was too apparent, and they were all defeated
by overwhelming majorities. An amendment was also moved to defer
the referendum for three months after the passing of the Bill ; but
this was withdrawn on the Premier undertaking to allow an interval
of six weeks.

The Bill passed the Assemblj'' without amendment, and went to
the Council, where it met with a very different reception. A large

222 HISTORICAL INTRODUCTION.

petition was presented against the Bill^ and the opposition was led by
Dr. McLaurin with a powerful attack on the financial clauses, which
he claimed to be unworkable. In Committee, three vital amendments
were passed by large majorities; one to defer the referendum for
three months; another to make acceptance by one-third of all the
electors necessary; and a third making the inclusion of Queensland a
condition of Federation. To these amendments the Assembly refused
to agree; the Council insisted, and a free Conference was held, but
both sides were unyielding, and on 30th March Parliament was
prorogued.

The Council was at this time much below its normal strength,
owing to deaths and resignations, and a few days after the prorogation
the Governor, on the advice of his Ministers, appointed twelve new
members. On 11th April Parliament was again called together, and
the Enabling Bill was again passed by the Assembly and sent up to
the Council. The hint was sufficient. Only one amendment was
proposed, to require an interval of eight weeks before the referendum
should be taken. This was agreed to by the Assembly, and on 22nd
April the Bill was assented to.

The Second Eeferendum. — The 20th June, 1899, was the day
fixed for the Referendum, and the last great tight began at once. The
federal campaign was organized by the United Federal Executive,
formed of representatives from the non-party Australasian Federation
League, from the New South Wales Federal Association, which had
fought the last battle for the Bill, and from the Ministerial and
Opposition parties in Parliament. On the other side, the Anti-Con-
vention Bill League took up its old attitude. Of the Sydney daily
press, the Telegraph was alone in its opposition ; the Sydney Morning
Herald, the Evening News, and the Australian Star all worked zeal-
ously for Federation. The Sydney Bulletin, which — when it has a
positive policy — is a great power throughout Australia, concentrated
its unrivalled wealth of ridicule against the opponents of the Bill, and
the suburban and provincial press were almost unanimous on the same
side. Of the 125 members of the Legislative Assembly, some 86
supported the Bill with varying degrees of zeal ; and nine of the New
South Wales representatives at the Convention worked earnestly for
it — Mr. Lyne alone expressing himself still dissatisfied.

With all these odds against them, the Anti-Bill party made a
gallant fight. Their virtual leader was Dr. MacLaurin, whose
criticism of the financial clauses undoubtedly made a deep impression ;
whilst the rank and file of the party made onslaughts upon every
joint in their opponents' armour, and devoted themselves especially
to stir up jealousy in the metropolitan area. The great bulk of the
Parliamentary Labour Party still yearned for the national referendum,
and opposed the Bill consistently ; though at the polls the labour vote
was fairly evenly divided. The heart of the controversy, however,
was the financial argument, and the wiiole country seemed plunged
into a bewildering maze of figures, devoted to proving — and disproving
— that the Bill would involve oppressive and unfair taxation in New
South Wales. Eight days before the vote a fillip was given to the
cause by the passing, at last, of a Federal Enabling Bill in Queens-

THE FEDERAL ISrOVEMENT TN AUSTRALIA.

223

land — the colony of which federalists and anti-federalists alike had
always spoken as the " natural ally " of New South Wales.

The result of the polling" was a decisive victory for Federation
by a majority of 24,679 votes, the figures in the city, suburban, and
country electorates being as follows : —

Yes.

No.

City . . .

Suburbs

Country

Total

11,019
24,475
71,926

10,546
25,237
46,958

107,420

82,741

Taken by electorates, the vote shows 79 electorates for the Bill,
and 46 against — or a majority of 33 for union.

The Southern Colonies. — South Australia had passed the new
Enabling Act in March, and seizing the opportunity afforded by a
general election, had taken the vote upon the amended Bill on 29th
April, when the verdict of the previous year was, without much
excitement, reaffirmed by an even larger majority than before — the
voting being 65,990 for Federation, and 17,053 against.

Victoria and Tasmania, as soon as the verdict of New South
Wales was known, passed Enabling Acts on the same lines, and fixed
27th July, 1899, as Referendum Day. In Victoria, despite the weak-
ness of the opposition, federalists determined to exhibit their strength,
and aroused enthusiasm to such a pitch that a great muster of 152,653
votes were recorded for the Bill, and only 9,805 against it. In
Tasmania also the majority was increased, and the minority reduced,
the figures being 13,437 for and only 791 against the Bill.

Queensland. — The real interest now centred in Queensland.
The Premier, Mr. Dickson, ably supported by his colleague, Mr. R.
Philp, took up the cause with enthusiasm. The Enabling Bill, pro-
viding for the submission of the amended Constitution to a referendum,
and for its subsequent transmission, by address of both Houses, to the
Home Government, was introduced in May. It was nearly wrecked
at the outset by a proposition from the democratic party to adopt the
principle of " one man one vote," without restriction, at the referen-
dum. There was in Queensland a "plural vote" — electors being
entitled to vote in every electorate in which they possessed property
of an annual value of £10 — and there was also a considerable nomad
population not registered as voters. It was urged that every man
over the age of twenty-one should be allowed to vote wliether
registered as a voter or not. This the Government were unable to
accept, but they only gained their point, and saved the Bill, by one
vote. They afterwards conciliated opposition by affording facilities
for a revision of the rolls before referendum day.

One difficulty to be faced was that Queensland — though it had
been ably repi-esented at the 1891 Convention, whose work was the

224 HISTORICAL INTRODUCTION.

basis of the draft Constitution now presented — had, through the fault
of its politicians, taken no part (except through its Premier, Mr.
Dickson, at the Premiers' Conference) in the actual framing of the
Constitution. A natural though belated desire was felt to have a
voice in the details; and as the Constitution was appended as a
schedule to the Enabling Bill they could, technically, make amend-
ments in it. An attempt to do so was, however, thwarted by the
leaders of all parties, who pointed out the futility of taking a vote on
anything but the identical Constitution agreed to by the other colonies;
and the Bill and the schedule were passed through both Houses with-
out amendment, and became law on 19th June — the eve of the
referendum in New South Wales. The vote was fixed for 2nd
September, and the campaign began.

But the friends of Federation had to face great difficulties. The
question in Queensland was comparatively new, and the Constitution
came definitely before the people for the first time. The forces of
prejudice, ignorance, and suspicion, which in the other colonies had
gradup^lly given way as a result of repeated federal campaigns, had to
be met and beaten down at a single blow ; the principles of the Con-
stitution, which in the other colonies had been expounded, analyzed,
attacked and defended, discussed in public and in private, for two or
three years, had to be brought home to the people in the space of a
few weeks. The friends of the Bill worked zealously, and achieved
wonders. It soon became clear that the North and the Centre were
the federal strongholds — federal sentiment being there aided by the
hope that the separation of those districts into distinct provinces, so
long unsuccessfully contended for, would be easier after Federation.
The one clause of the draft Constitution which aroused the fears of
the Separatist federalists was clause 124, providing that a new State
might be formed by separation of territory from a State, "but only
with the consent of the Parliament thereof.'^ The Separatists were
in a minority in the Queensland Parliament, and objected to the
desires of an overwhelming majority in the North and Centre being
thwarted by a majority in the South.

In Brisbane and throughout the southern district the opposition
to the Bill was very strong. Farmers, merchants, and manufacturers
feared the competition of their New South Wales neighbours under a
system of intercolonial f reetrade ; and — while the anti-federalists in
New South Wales hailed Queensland as their "natural ally" against
the southern colonies — the extreme anti-federalists of Queensland
turned against New South Wales the epithets which their brethren in
New South Wales had hurled against Victoria. Brisbane feared the
competition of Sydney, just as Sydney had feared the competition of
Melbourne; and federalists had a hard task in convincing their
opponents that the benefits of free intercourse would vastly outweigh
any sacrifice of intercolonial protection.

In Queensland, therefore, the opposition was directed against a
vital principle of Federation, and was undeniably anti-federal. The
objection was not to this Constitution merely, but to any Federation
worthy of the name. It was a war of vested interests and intercolonial
protection against commercial unity. Minor issues were, of course,

THE FEDERAL MOVEMENT IN AUSTRALIA.

•225

raised, and the "Anti-Bill" catchwords of the other colonies — however
inapplicable — were caught up and scattered broadcast. The cry of
" increased taxation through the customs,'^ and even the exact figures
of " 22s. 6d. per head increased taxation," were copied from Xew
South Wales manifestoes with calm indifference to the fact that these
forecasts were based upon the existing tariff of Xew South Wales —
which produced about 30s. per head less than that of Queensland.
Equal representation in the Senate was, fi-om the Queensland point of
view, a merit ; but it was largely discounted by the Money-Bill and
deadlock clauses, which it was feared would lead to the undue
supremacy of the larger colonies.

The result of the vote was a victory for Federation by a substan-
tial majority of 7,492 — the figures being 38,488 for the Bill, and
30,996 against. In the Northern district there was an overwhelming
federalist majority of 8,993, every electorate showing a majority for
the Bill. In the Centre, there was a majority of 2,156, eight elector-
ates being favourable, and three unfavourable. Rockhampton, the
capital of the centre, polled against the Bill — a result due, not to
antagonism to Federation, but to a Separatist fear of clause 124. The
Centre and Xorth thus gave a combined federal majority of 11,149;
but this was unfortunately reduced by an anti-federal majority of 3,657
in the South — the metropolitan electorates being all against the Bill,
and the rest of the Southern district polling slightly in its favour.

The Total Results. — The voting in the five colonies whose
electors had accepted the draft Constitution was as follows : —

New South
Wales.

Victoria.

Au's?^V 1 T— i-

Queensland.

Total.

Yes
Xo

107,420

82,741

152,653

9,805

65,990 ! 13,437 ' 38,488
17,053 I 791 j 30,996

377,988
141,386

Majority ...

24,679

142,848

48,937 12,646 7,492

236,602

These figures are a striking proof of the extent and sincerity of the
national sentiment throughout the whole of Eastern Australia ; and
they are also a unique testimony to the high political capacity of the
Australian people. Never before have a gi'oup of self-governing,
practically independent communities, without external pressure or
foreign complications of any kind, deliberately chosen of their own
free will to put aside their provincial jealousies and come together as
one people, from a simple intellectual and sentimental conviction of
the folly of disunion and the advantages of nationhood. The States
of America, of Switzerland, of Germany, were drawn together under
the shadow of war. Even the Canadian provinces were forced to unite
by the neighbourhood of a great foreign power. But the Australian
Commonwealth, the fifth great Federation of the world, came into
voluntary being through a deep conviction of national unity. We
may well be proud of the statesmen who constructed a Constitution

226 HISTORICAL INTRODUCTION.

which — whatever may be its faults and its shortcomings — has proved
acceptable to a large majority of the people of five great communities
scattered over a continent ; and proud of a people who, without the
compulsion of war or the fear of conquest, have succeeded in agreeing
upon the terms of a binding and indissoluble Social Compact.

The Addresses to the Queen. — The last step towards the
acceptance of the draft Constitution by the five colonies was taken by
the Legislatures in passing Addresses to the Queen praying that the
Constitution should be passed into law by the Imperial Parliament.
In the three southern colonies — Victoria, South Australia, and Tas-
mania— this proceeding, after the emphatic vote of the electors, was
little more than a matter of form ; and during the month of August
both Houses of Parliament in each of those colonies adopted the
Addresses without opposition and amid general congratulations.

In New South Wales there was a show of opposition, but only by
a few of the most irreconcilable critics. Many of those who had
opposed the Bill had been influenced by misgivings rather than by
real hostility, and accepted the verdict of the people loyally. The
Address was debated at length in the Assembly, but an amendment
purporting to inform the Queen that 82,000 of her loyal and dutiful
subjects had voted against the Bill, and that "such vote was not a
declaration against Federation, but against the adoption of any Con-
stitution which could not be amended by a majority of the Australian
people/^ was defeated by 75 votes to 22, and the Address was then
passed on the voices. In the Council the opposition was stronger.
An amendment, moved by Mr. C. G. Heydon, to declare that if the
Parliament did not meet at the Seat of Government within four years,
it should sit in alternate years at Sydney and Melbourne, was prompted
by the fear that the sittings of the Parliament at Melbourne might
become permanent. Federalists recognized, however, that it was
impossible to re-open the terms of union at this stage, and the amend-
was defeated by a narrow majority of four. On 17th August the
Address itself was carried, after several nights' debate, by 24 votes
to 21.

In the Queensland Assembly the verdict of the people was also
loyally accepted, and the Address was passed, on 4th August, by 57
votes to 9. In the Council, an amendment was moved to declare that
the Bill had been carried by majorities in the Centre and North only ;
but this eifort to elevate sectional differences over the decision of the
whole colony failed, and the Address was passed by 16 votes to 9.

Western Australia. — At the close of the Convention, Sir John
Forrest had seemed prepared to recommend Western Australia to
adopt the Constitution as it stood ; but his attitude subsequently
became less favourable. At the Premiers' Conference, 1899, it is
understood that he asked, unsuccessfully, for certain concessions. In
July, 1899, after the second referendum in New South Wales, the
Constitution was for the first time submitted to the Parliament of
Western Australia, and was referred to a Select Committee of the
Legislative Assembly. On 19th September the Committee brought up
its report, declaring its opinion that before Western Australia could
safely join the Commonwealth, four amendments were necessary : —

THE FEDERAL MOVEMENT TN AUSTRALIA. 227

(L) Enabling the colony to be divided into electorates for the

election of Senators ;
(2.) Empowering the Federal Parliament to authorize the con-
struction of a transcontinental railway ;
(3.) Allowing Western Australia, for five years after the adoption
of a federal tarifp, to impose her own customs duties on
intercolonial and other imports ;
(4.) Exempting Western Australia, for the same period, from the

jurisdiction of the Inter-State Commission.
The object of the second of these amendments was to dispense
with the necessity of the consent of South Australia (under sec. 51 —
xxxiv.) to the selection of the route and the construction of the line
within that colony. The five years' control of the tariff was for the
double purpose of securing the revenue Aecessities of the colony and
affording temporary protection to the West Australian farmers, and
other producers of foodstuffs.

On the consideration of this report in the Legislative Assembly,
the Government proposed to submit to the electors both the Bill as
adopted by the Premiers^ Conference and the Bill with the West
Australian amendments. This was stoutly opposed by federalists,
who were confident that there was an overwhelming majority of the
population, especially on the goldfields, in favour of tbe Bill as it
stood, and that the proposed alternative ballot would confuse the
issue. In Parliament, however, the goldfields were very scantily
represented as compared with the settled districts; and though Mr.
Leake moved an amendment that the Bill as adopted by tbe Premiers'
Conference should alone be referred to the people, the Government
proposal was carried by the House.

In the Council the proceedings were hopelessly tangled. First a
proposal by Mr. Matheson, that the Bill as adopted by the other
colonies should be referred to the people, was negatived. Then a
proposal by Mr. Whitcombe, that it was undesirable at present to
submit the question of Federation to the people at all, was also
rejected. The Government's proposal to submit both Bills met with
the same fate ; and finally a proposal by Mr. Hackett, to submit only
the Bill with the Committee's amendments, was also lost. The result
was that the submission of the Bill to the people was blocked
altogether. The federalists raised the cry that the whole fiasco had
been planned by the Government ; and an agitation was promptly
started on the goldfields for separation from Western Australia,
under the power reserved by the Queen in the Constitution of the
colony.

In January, 1900, Sir John Forrest, with a view to securing
assent to his amendments, visited the eastern colonies and attended a
Conference of Premiers at Sydney. He finally gave up three of the
West Australian amendments, but stood tirm on the five years' liberty
to impose intercolonial customs duties. Had the matter been still in
the stage of negotiation, this might have been granted; but the
diflBculty was that the Constitution was now a compact upon which
the people of the accepting colonies had set the seal of their approval.

228 HISTORICAL INTRODUCTION.

and whose alteration the Governments of those colonies were unable
to countenance.

New Zealand, — New Zealand^ alone of the seven Australasian
colonies^ had, since the Convention of 1891, taken no part in the
process of framing the Federal Constitution. Following the example
of 1891, New Zealand is mentioned in covering clause 6 as a
possible " State/' but as yet she has taken no steps to adopt the
Constitution. This does not mean that New Zealand is without
interest in Australian Federation. The progress of the movement
has been watched by that colony with keen attention ; and a sub-
stantial section of public opinion favours the adoption of the Con-
stitution. In July, 1899, a Federation League was formed in Auck-
land; and though the question of Federation has not risen to the
magnitude of a party issue, it has been much discussed by politicians,
by the press, and by the people. For the most part, however,
Federation is in New Zealand not so much a national as a commercial
question. Her geographical isolation from Australia by 1,200 miles
of sea is a factor which cannot be neglected, though it may be
exaggerated. At the same time, her commercial and other relations
with Australia are most important ; her interests, as regards defence
and external affairs, are largely identical ; and the alternatives either
of union or of a reciprocal commercial arrangement with the Com-
monwealth are pressing themselves upon the attention of the people
of New Zealand.

(18) ENACTMENT OF THE CONSTITUTION, 1900.

On 22nd December, 1899, Mr. Joseph Chamberlain, Secretary of
State for the Colonies, in a telegraphic despatch to Earl Beauchamp,
Governor of New South Wales, expressed a hope that a delegation
from the federating colonies would visit England and be present
when the Commonwealth Bill was submitted to the Imperial Parlia-
ment. This invitation was considered at a Conference of Premiers
held at Sydney from 24th to 27th January ; and it was arranged that
a delegation should be sent, consisting of Mr. Edmund Barton
(N.S.W.), Mr. Alfred Deakin (Victoria), Mr. J. R. Dickson (Queens-
land), Mr. C. C. Kingston (S.A.), and that they should be joined in
London by Sir Philip O. Fysh (Tasmania). It was agreed that the
delegation should represent all the federating colonies in unitedly
urging the passage of the Bill through the Imperial Parliament
without amendment, and in explaining any legal or constitutional
questions that might arise. The Government of Western Australia
also expressed a desire to be represented, and, with the concurrence
of the Secretary of State, despatched Mr. S. H. Parker, Q.C., as a
Delegate from that colony.

Imperial Criticisms. — Towai-ds the middle of March, 1900, the
Australian Delegates arrived in London. Mr. Barton was appointed
their spokesman; and on 15th March they had their first
informal conference with the Secretary of State for the Colonies and

THE FEDERAL MOVE^IENT IX AUSTRALIA. 229

the Crown Law Officers. Mr. Chamberlain having welcomed the
Delegates, Sir Richard Webster, Q.C., Attorney-General, indicated
the provisions of the Bill which the Crown Law Officers thought
required discussion and explanation, and perhaps amendment. The
chief objection made was to clause 74, as restricting the right of
appeal to the Privy Council.

It was evident from the outset that, whilst the Delegates were
anxious to secure the passage of the Bill without amendment, the
Imperial Government were equally anxious to amend certain pro-
visions which seemed to them to affect Imperial interests. The only
way in which the Imperial Government had been heard in connection
with the framing of the Bill was in consultation with the Australian
Premiei-s at London at the Diamond Jubilee celebrations in 1897,
when certain criticisms had been made on the Bill as drafted at
Adelaide. Mr. Chamberlain had subsequently sent Mr. Reid a
confidential memorandum of the criticism of the Crown Law Officers,
which included an objection to the almost total abolition of Privy
Council appeals, as proposed in the Adelaide draft. (See Extract from
this memorandum. Pari. Papers, May, 1900.) This memorandum
had been handed by Mr. Reid to the Drafting Committee, and
had led to several amendments being made, and particularly to a
considerable modification of the clause relating to Privy Council
appeals. The Crown Law Officers, however, were not satisfied with
the new clause, and had also some new criticisms to offer.

A memorandum of the amendments suggested by the Crown
Law Office was afterwards handed to the Delegates. (House of Com.
Pap., May, 1900, p. 19.) These amendments, only five in number,
were wholly confined to the covering clauses of the Bill. (1) As
regards Privy Council appeals, it was proposed to modify the effect
of clause 74 by adding to covering clause 5 a declaration that
nothing in the Act or the Constitution should affect any prerogative
of the Crown to grant special leave of appeal to Her Majesty in
Council. (2) In covering clause 2, the words " This Act shall bind
the Crown ^' were proposed to be omitted, as involving an unnecessary
interference with the prerogative. (3) In covering clause 5, the
provision that the laws of the Commonwealth should be in force on
British ships plying between ports of the Commonwealth was pro-
posed to be omitted as being too wide and involving a possible
conflict of jurisdiction ; whilst it was thought that all necessary
powers of legislation in respect of the coasting trade were given by
sec. 736 of the Merchant Shipping Act, 1894 (see p. 50, siipra). (4)
It was proposed to declare, in covering clause 5, that the laws of the
Commonwealth were " colonial laws " within the meaning of the
Colonial Laws Validity Act, 1865 (28 and 29 Vic. c. 63). A conten-
tion had been raised in Canada that this Act was not fully applicable
to laws of the Dominion (see Lefroy, Legisl. Power in Canada,
PP- -^^-8) ; and the Crown Law Officers feared that in Australia a
similar contention might derive some support from the definition of
" colony " in covering clause 6. (5) It was proposed that the Con-
stitution, instead of being appended to covering clause 9, should be
placed as a schedule to tiie Act.

230 HISTORICAL INTRODUCTION.

Memorandum of the Delegates. — Preliminary to a further inter-
view with the Secretary of State for the Colonies, the Delegates
forwarded to him a Memorandum, dated 23rd March, of their reasons
for urging the passage of the Bill in the form in which it had been
affirmed by the people. (House of Com. Pap., May, 1900, p.
13). In defending the provisions proposed to be altered, they care-
fully guarded themselves against even appearing to acquiesce in the
suggestion that any amendment was necessary. They called attention
to the recital in the preamble that the people of the federating
colonies had agreed to unite in a federal Commonwealth " under the
Constitution hereby established ; " and argued that this recital would
not be justified if the Constitution were in any way altered.

In answer to a question whether, if alterations were made, it was
preferable that they should be placed in the covering clauses rather
than in the Constitution itself, the Delegates replied that though this
would, in appearance, be the less objectionable method, yet any
amendment in the covering clauses which altered the meaning of the
Constitution would be in effect an alteration of the Constitution, and
would therefore be equally objectionable.

They then dealt categorically with the specific amendments
foreshadowed by the Crown Law Officers. As regards the application
of the Colonial Laws Validity Act, they thought that the meaning of
the Bill was clear without the proposed amendment, and that the
definition of " colony " in covering clause 6, which had been framed
simply for the purpose of clearly including South Australia in the
Bill, could not exclude the definition of " colony " in the Colonial
Laws Validity Act from applying to the Commonwealth. In support
of this view, they cited the definition of " colony " in the (Imperial)
Interpretation Act, 1889 (52 and 53 Vic. c. 63). And they hinted that,
if the Imperial Government thought that any doubt was raised by
the definition in the Bill, it would be better to omit the definition, as
being unnecessary, than introduce new matter.

With regard to the proposed omission of the provision relating
to British ships, they pointed out that the provision was much more
restricted than that inserted, at the instance of the Imperial Govern-
ment, in the Federal Council Act of 1885. If the contention were
correct that the matter was sufficiently provided for by the Merchant
Shipping Act, 1894, the phrase objected to was at the worst a harmless
redundancy. But the expression " coasting trade " in that Act was
not defined, and might be taken to include only the trade of vessels
plying within the " three-mile " territorial limits. Moreover, the
provision removed a further anomaly by protecting a vessel which
passes from the territorial waters of one colony into those of another
from being subjected to a change of laws, and by applying the
uniform laws of the Commonwealth during the whole passage from
one port of the Commonwealth to another. The power, though larger
than that conceded by the Merchant Shipping Act, was larger only
for the most beneficial purposes.

To the amendment relating to Privy Council appeals they objected
as substantially altering, and in great part nullifying, clause 74 of the
Constitution. They entered into an elaborate defence of clause 74,
pointing out that it was not as far-reaching as was supposed in some

THE FEDERAL MOVEMENT IN AUSTRALIA. 231

quarters, and jastifying the demand for the finality of the judgments
of the High Court, in constitutional eases, by the argument that if
the Australians were fit to make a Constitution for themselves they
were fit also to interpret that Constitution. The concluding sentence
of the clause, giving the Federal Parliament power to limit the right
of appeal, only conferred on the Commonwealth (they argued) a right
to do what each State could do at present, subject to the reservation
of the Bill as affecting the prerogative ; and they referred to the
Instructions to Australian Governors, dated July, 1892, clause viii.,
par. 7 (see note, § 56, infra) as showing that the framers of the
Instructions considered that the colonies had full legislative powers in
matters affecting the prerogative, subject to reservation for the royal
assent. The last sentence of the clause, therefore, seemed only to
<:onfer on the Commonwealth a legislative power which had long been
possessed by each of the States. They asked the Imperial Govern-
ment to consider whether clause 74 was of such a nature as to justify
alarm, and whether it was worth while to incur the risk of serious
dissatisfaction in Australia for the sake of preserving the small degree
of prerogative affected.

They referred to the generous attitude taken by the Imperial
Government in respect of the Federal Council Bill in 1885, when it
had been recognized that it would be inexpedient to make any
unavoidable alterations in the draft submitted from Australia; and
they concluded with an eloquent appeal to the mother-country to place
in the hands of the Australian colonies the trust for which they asked.
This memorandum was signed by the Delegates of the five federating
colonies.

Mr. Haldaxe's Proposal. — At this stage a new element was
introduced into the appeal question by a proposal from Mr. R. B.
Haldane, Q.C., M.P. Mr. Haldane, in an article in the March number
of the Juridical Review, dwelt on the confidence felt in the Privy
Council by all parts of the Empire, and the valuable work it had done
in reviewing the decisions of the High Court of Canada, and giving a
liberal interpretation to the powers of the provinces as defined in the
British North America Act. The Commonwealth Bill, however, pro-
posed to restrict this right of appeal, and he contended that this could
only be averted "by making our Australasian colonies feel that we
offer them the finest court of ultimate appeal that the Empire can
produce." He proposed that the three colonial members of the Privy
Council should be made life peers, and that this step should be
followed by the fusion of the Judicial Committee of the Privy Council
with the House of Lords in its judicial capacity. There would then
be one great Imperial tribunal, and the anomaly of having one court
of final appeal for the United Kingdom, and another for the depen-
dencies, would be removed.

Mr. Haldane's suggestion attracted much notice in the press, and
was regarded with favour by the Imperial Government and the Crown
Law officers.

MEM0RA>fDUii OP Imperial Objections. — In answer to the Memo-
randum of the Delegates, the Imperial Government prepared a Memo-
randum, dated 29th March, setting forth their objections to some

232 HISTORICAL INTRODUCTION.

provisions of the Bill. (House of Com. Pap., May 1900, p. 22.) It
stated that tliey were most anxious for the speedy passage of the Bill
in a form which would give the Australian colonies the Federation
which they desired ; but, at the same time, it was their bounden duty
to protect the interests of the United Kingdom and the rest of the
Empire. The points of difference were few, and involved a minimum
of alteration. They observed that the Memorandum of the Delegates
abstained from discussing any of the proposed alterations on their
merits, and consisted almost wholly of an appeal to the Government
to accept the Bill unaltered, as embodying the wishes of the Austra-
lian people. They felt it their duty to place on record some of the
reasons which made it impossible for them to accede to this request.

In the first place, they contended that the distinction, which the
Delegates now refused to recognize, between the " covering clauses "
and the Constitution, had been clearly recognized in the debates of
the Convention, and that the Enabling Acts showed that the agree-
ment at which the people of the colonies had arrived related to the
" Constitution " only and not to the covering clauses.

As to the application of the Colonial Laws Validity Act, they
cited a suggestion by Mr. R. E. O'Connor (Conv. Deb., Syd., p. 252)
that the Act would not apply to the laws of the Commonwealth. They
contended that doubts arose, not only from covering clause 6, but also
from sub-sections xxix. and xxxviii. of section 51 ; and they added
that "in the absence of any definition or limitation of the privi-
lege claimed by these provisions of the Constitution, Her Majesty's
Government would fail in their duty if they left any room for doubt
as to the paramount authority of Imperial legislation."

As to the enforcement of the laws of the Commonwealth on
British ships trading between ports of the Commonwealth, they said
that the provision in the Federal Council Act, relied on by the
Delegates, was unduly wide. They contended that the power to
control the coasting trade, given by sec. 736 of the Merchant Shipping
Act, 1894, was not confined to territorial waters, and that the words
"first port of clearance" and "port of destination" were not free
from ambiguity.

As to Privy Council appeals, they thought there would be
uncertainty as to the definition of " matters involving the interpreta-
tion of the Constitution" and "public interests." They objected to
the powers given to the Federal Parliament to limit the prerogative,
and urged that the establishment of two final courts of appeal would
introduce confusion and uncertainty. The clause seemed to have
originated, to some extent, in objections to the present constitution
and working of the Judicial Committee — which however had, on the
■whole, commanded the confidence of the Empire. But the time was
specially inopportune to curtail its jurisdiction. Proposals were
under consideration for securing a permanent and effective represen-
tation of the colonies on the Judicial Committee, and for amalgamating
the Judicial Committee with the House of Lords, so as to constitute a
Court of Appeal from the whole British Empire. It would be unfor-
tunate if Australia should choose this moment to take from the
Imperial tribunal the determination of the class of cases of greatest

THE FEDERAL MOVEMENT TN AUSTRALIA. 233

importance and often of greatest difficulty. They stated at some
length the arguments against the contention for the finality of judg-
ments of the High Court, and concluded by saying : — " The reten-
tion of the prerogative to allow an appeal to Her Majesty in
Council would accomplish the great desire of Her Majesty's subjects
both in England and Australia, that the bonds which now unite them
may be strengthened rather than severed, and, by ensuring uniform
interpretation of the law throughout the Empire, facilitate that unity
of action for the common interests which will lead to a real Federation
of the Empire. The object of everyone at present should be to draw
closer together all parts of the Empire. The existence of the right
of appeal, subject to the leave of the Privy Council, has been a link
effectively binding together every part of Her Majesty's dominions;
the weakening of this tie would seriously lessen the value of even so
great and beneficent a result as the Federation of Australia. If the
Bill were passed in its present form, while it would mark a step in
advance as far as the Federation of Australia is concerned, it would
be a retrograde measure so far as it affects the larger question of
Imperial Federation."

New Zealand. — On 27th March, Mr. W. P. Reeves, the Agent-
General for New Zealand, informed the Colonial Office that he had been
appointed a Delegate for that colony ; and on 30th March he forwarded
to the Colonial Office a Memorandum of certain amendments desired
by New Zealand. (House of Com. Pap., May 1900, p. 29.) These
amendments, three in number, were in effect : —

(1.) That New Zealand should preserve the right of joining the
Commonwealth at any time, or within a specified time, on
the same terms as the Original States.
(2.) That while New Zealand remains outside the Commonwealth,
litigants in her Higher Courts, though reserving the right
of appeal to the Privy Council, should have an alternative
right of appeal to the High Court.
(3.) That the Commonwealth and New Zealand should be
empowered to make the necessary arrangements for joint
naval and military defence, including operations outside
their own boundaries, and for that purpose to form a
homogeneous Australasian force.
In support of the first amendment — the request for an '^open
door" — Mr. Reeves urged that New Zealand, on account of her
geographical distance and her peculiar circumstances, ought to be
given a longer time to make up her mind than had been necessary in
the case of contiguous colonies. Though New Zealand was linked to
Australia by bonds of intercourse, friendship, and sympathy, she had
also vital and separate interests. She had watched the federal move-
ment with caution and reserve, and her decision needed prudent
deliberation. To forestall a possible objection that his demands came
too late, Mr. Reeves said that New Zealand had been unable to judge of
the intentions of the Australian colonies until they had accepted the
Commonwealth Bill; and as the leading statesmen of Australia, in
response to a request by the Premier of Western Australia, had

234 HISTORICAL INTRODUCTION.

refused to consider any further amendments, the only course open to
Xew Zealand was that now taken.

Western Australia. — On the same day Mr. S. H. Parker, the
Delegate for Western Australia, forwarded to the Colonial Office a
Memorandum of the amendment asked for by that colony. (House
of Com. Pap., May, 1900, p. 31). Following the recommendation of
the West Australian Select Committee (p. 226 supra) he asked that
clause 95 should be struck out, and a clause substituted empowering
Western Australia, for five years after the imposition of the Federal
tariff, to receive the same customs duties as were in force at the
passing of the Commonwealth Act, such duties to be collected by the
Commonwealth. He announced that if this amendment were made,
the Government of Western Australia would immediately summon
Parliament in order to pass an Act to refer the Commonwealth Bill to
the people, and would use their utmost endeavours to secure its
acceptance.

Conference at the Colonial Office. — On 5th April there was a
Conference at the Colonial Office, at which Mr. Chamberlain presided,
and the Delegates from all the seven colonies were present (House
of Com. Pap., May, 1900, p. 35). Mr. Chamberlain first asked Mr.
Parker and Mr. Reeves to say anything which they might wish to
add to their respective Memoranda. Mr. Parker urged that the
sliding scale in the Bill, by which the intercolonial duties of Western
Australia would be annually reduced by one-fifth, was not a sufficient
protection for infant industries, and particularly for agriculture, and
that an annual alteration of duties would greatly injure and disturb
trade. If the Bill were to be amended at all by the Imperial Legis-
lature, he did not see why the West Australian amendment should
not be introduced. The argument against the amendment was that a
further referendum would be necessary ; and if there must be a
referendum there was an opportunity for this amendment. Questioned
by Mr. Chamberlain, he admitted that a referendum would cause some
delay, and that he could not ask for the amendment if it alone
necessitated a referendum. He also urged that if his amendment
were accepted, a further amendment would be necessary to enable
Western Australia, within a certain time, to be admitted as an
Original State. Cross-examined by Mr. Kingston, he admitted that
there was a strong feeling on the goldfields in favour of accepting the
Bill without amendment, but maintained that the majority of the pro-
ducing population were against it. He could not form an opinion
whether the Bill if referred to the people would be accepted.

Mr. Reeves expanded the arguments of his Memorandum, and
said that while the attitude of New Zealand was one of " cautious
examination," the feeling in favour of Federation was growing.
Asked by Mr. Chamberlain whether two of his suggestions — namely,
the appeal to the High Court and the arrangements for mutual
defence — were not rather a matter for subsequent agreement with
the Commonwealth than for amendment of the Bill, he merely pointed
to other special provisions in the Bill relating to particular colonies.
He suggested seven years as the time during which the "open door"
should be allowed to New Zealand. As to the question of delay, he

THE FEDERAL MOVEMENT IN AUSTRALIA. 235

agreed with Mr. Parker that if the Bill were to be amended at all
these amendments could be put in.

From remarks made by Mr. Chamberlain, it appears that though
some amendment of the covering clauses was contemplated bj the
Imperial Government, no decision had then been come to whether
any amendment would be made in the Constitution itself.

Mr. Parker and Mr. Reeves then withdrew, and the remainder of
the Conference was devoted to discussing, with the Delegates of the
five federating colonies, the different points at issue. The Delegates
seem to have understood that the amendments relating to the Colonial
Laws Validity Act and to British ships would be abandoned.

At midnight, Mr. Chamberlain despatched to the Governors of
the five colonies a telegram announcing the result of the Conference.
He disclaimed any intention to interfere in interests exclusively
Australian, but was confident that the Ministers of the colonies
would give full weight to the suggestions of the Imperial Govern-
ment when urged on behalf of the United Kingdom, or as Trustees
for the Empire at large. The Imperial Government would have
desired amendment as to various questions which had arisen, but were
unwilling to risk delaying Federation by pressing their views ; and
the operation of clause 74, in restricting the right of appeal to the
Privy Council, was now practically the only matter in issue. The
Imperial objections to the clause were set out substantially as
follows : —

(1.) The term "public interests "is vague, and would lead to

increased litigation.
(2.) A most important link of Empire would be seriously im-
paired, and the consequences would be far-reaching in
allowing divergency to spring up where uniformity is
most desirable.
(3.) In the interests of Australia, the final decision in important
questions as to boundaries of Federal and State powers
should lie with the highest court of the Empire, beyond
suspicion of local bias.
(4.) Important questions as to the operation of Commonwealth
laws on British shipping, or generally as to whether such
laws are ultra vires, can hardly be allowed to be concluded
by the High Court.
(5.) Commonwealth laws on fisheries, &c., may seriously affect

the interests of other parts of the Empire.
(6.) Banks and other institutions having large interests in Aus-
tralia are strongly against the limitation, and weighty
representations on the subject have been made to the
Imperial Government.
(7.) The actual restriction, and the power claimed to make
further restriction, equivalent to practical abolition of
appeal, are specially inopportune when a Bill is under
consideration for enhancing the dignity and efficiency of
the Judicial Committee by practically amalgamating it
with the House of Lords, and providing for the adequate
and permanent representation of the great colonies in a,
new court.

236 HISTORICAL INTRODUCTION.

For these and other reasons tlie Imperial Government felt that
they must press for the amendment of clause 74, but they wished to
effect the amendment in the way most agreeable to Australian senti-
ment, and so as to avoid if possible the delay and expense of a
further referendum. Several suggestions had been made, but the
Delegates' lack of instructions prevented their discussing the form of
the proposed amendment.

The only other amendment alluded to was the declaration that
the Colonial Laws Validity Act applied to Acts of the Commonwealth
— a declaration which the Imperial Government still regarded as
necessary. Mr. Chamberlain earnestly appealed to the colonial
governments to co-operate with him in securing the unopposed passage
of a Bill which, while accepting the draft Constitution practically in
its entirety, would take account of the above considerations ; and he
trusted that they would enlarge the instructions to their Delegates,
and authorize them to arrange with the Imperial Government the
speediest and best method of securing these objects.

On the same date Mr. Chamberlain telegraphed to the Governors
asking whether their Ministers would consent to the amendment
desired by Western Australia being inserted in the covering clauses.

Premiers' Conference. — On receipt of these telegrams the five
Australian Governments decided to hold a conference of Premiers to
discuss the position. Meanwhile, on 16th April, Mr. Chamberlain
sent a further telegram stating that whilst he would be glad to learn
that the Premiers concurred in his policy of amending the Bill, what
he immediately desired was that the Delegates should be authorized
to consult with the Imperial Government as to the best means of
effecting the alterations, especially with a view to avoiding, if possible,
a further referendum. The responsibility would rest with the Imperial
Government, but they were anxious to avail themselves of the assist-
ance of the Delegates. On 17th April Mr. Chamberlain, at the request
of Mr. Reeves, sent a telegram inviting consideration of the New
Zealand request for an " open door " for seven years. If the Premiers
approved, he would be prepared to consider the amendment, otherwise
he would not be justified in making it.

The Premiers' Conference sat at Melbourne from 19th to 21st
April. Neither Mr. Philp, for Queensland, nor Mr. Lewis, for
Tasmania, were averse to the alteration of clause 74 ; but ultimately
the following resolution was asfreed to : —

" The Premiers of New South Wales, Victoria, Queensland,
South Australia, and Tasmania, in conference assembled, having
given full consideration to the despatches from the Secretary of State
for the Colonies respecting suggested amendments in the Common-
wealth Bill, reply : —

" (1.) While they fully recognize the feeling of the Imperial
Government that vigilance on their part is essential in the interests of
all parts of the Empire, and also the importance of securing the
inclusion of Western Australia in the Federation from the first, they
cannot forget that by the enabling Acts and in pursuance of them (a)
the framing of the Federal Constitution was expressly entrusted to
the Convention of Representatives, specially elected by the people for

THE FEDERAL MOVEMENT IN AUSTRALIA. 237

the purpose, in all the Colonies, except Queensland and "Western
Australia, and that the final acceptance or rejection of the Constitution
when framed was also remitted to the people ; (6) the question as to
appeals was, inter alia, considered by the Convention in Adelaide,
and no appeal to the Privy Council was allowed. During the visit of
the Premiers to England at the Jubilee the matter was referred to by
the Secretary of State for the Colonies, who urged reconsideration.
It was accordingly reconsidered at the meeting of the Convention in
Melbourne, and resolved in the opposite direction to the decision in
Adelaide. Later, the matter was again discussed, and the compromise
now in the Bill agreed to. It was yet again debated in the Premiers'
Conference prior to the last referendum, and no alteration was made
in the form of the Bill. The vote was then taken and the Bill was
adopted by a large majority of the electors; (c) the Commonwealth
Bill belongs therefore in a very special sense to the people of Aus-
tralia, whose only mandate to Governments and Parliaments is to seek
its enactment by the Imperial Parliament in the form in which it was
adopted by the people.

" (2.) The Premiers believe that the Appeal Clause, as framed,
could not work injuriously to any part of the Empire, although the
proposed new Court of Appeal for the Empire would doubtless present
attractions to the people of Australia.

" (3.) The only alternatives suggested in the despatches are : —
(1) Amendment of the Bill and (2) postponement of its consideration.
Of these two the Premiers do not hesitate to say that the latter
course would be much more objectionable to Australians generally
even than the former.

" (4.) Without disputing the constitutional power of the Imperial
Parliament to amend the Bill on its own responsibility, the Premiers
respectfully urge that the voice of the Australian people given on the
Bill as it stands should receive that favourable consideration which
such a weighty referendum demands. The Premiers do not consider
themselves as having authority to accept any amendments. They
hope that the colony of Western Australia, whose representatives
assisted lo frame the Bill and in the Convention almost unanimously
agreed to clause 95, may be urged to accept it as it stands. They
think that the Bill already sufficiently provides for the admission of
New Zealand."

Westekx Australia and New Zealand. — On 27th April, Mr.
Chamberlain telegraphed to Sir A. C. Onslow, the Acting-Governor
of Western Austi-alia, that the Premiers had declared that they
had no authority to accept amendments, and had given their Delegates
no fresh instructions. He therefore could not press the matter
further, and now urged West Australian Ministers to consider whether
they should not, in the best interests of that colony as well as of
Australia, make a resolute effort to bring the colonv into Federation
at once. Western Australia, unless she joined as an Original State,
could only enter later on condition of complete intercolonial freetrade,
and would thus lose the temporary protection of clause 95 ; whilst, in
view of her present population, she might find it difficult to secure
such large representation in the Federal Parliament as she would get

238 HISTORICAL INTRODUCTION.

as an Original State. He also asked them to consider the effect of the
agitation of the Federalist party, especially in the goldfields, if the
colony did not enter as an Oi'iginal State. He thought it of the
utmost importance to the future of Western Australia that she should
join at once, and he urged that they should immediately summon Par-
liament and take steps for ascertaining the wishes of the people. If
they agreed to this course, a clause would be inserted in the Bill
providing that, if the people intimated, before the issue of the
Queen^s proclamation, a desire to be included. Western Australia
might join as an Original State.

To this the Acting-Governor replied, on 2nd May, that Parlia-
ment had been summoned for 17th May, when an Enabling Bill would
be introduced by the Premier providing for the immediate submission
of the Commonwealth Bill to the people.

On 28th April the Colonial Office informed Mr. Peeves that the
Premiers at the Melbourne Conference had decided that they had no
authority to accept any amendments, and considered that the Bill
already provided sufficiently for the admission of New Zealand.
Under these circumstances he did not feel justified in further pressing
for amendments in regard to a question which appeared to be one to
be settled by the Australian colonies without Imperial interference.

The Delegates' Second Memorandum. — In some quarters, the
Premiers' resolution was viewed as an ''invitation" to the Imperial
Grovernment to amend the Bill. The Delegates of the federating
colonies — except Queensland — made haste to correct this impression.
They addressed a second Memorandum to the Colonial Office, dated
27th April. (House of Com. Pap., May, 1900, p. 65.) They said that
the one remaining amendment suggested by the Imperial Govei^nment
had been fully considered by the Premiers in Conference. As the
Premiers had been unable to accept it, or to withdi-aw, enlarge, or
modify the instructions to the Delegates, it continued to be the
common duty of the Delegates — each of whom was appointed to
represent all the colonies — to press for the speedy passage of the Bill,
as prepared by the instructions, and endorsed by the votes, of the
Australian people. In firmly preferring this request with all possible
respect, they deemed it desirable to offer some comment on the
Colonial Office Memorandum of 29th March.

The substantial issue which they again pressed upon the attention
of Her Majesty's Government was that the Bill as prepared was an
Australian Constitution in a double sense — Australian not only in
origin, but by the deliberate endorsement of Parliaments and peoples.
Any amendment, not both absolutely essential and incapable of
achievement by any other means and at any other time, was to be
deprecated as destroying the character of the measure, and re-opening
numerous issues at present happily and conclusively settled. They
again drew attention to the phrase in the preamble, reciting that the
people of the colonies had agreed to federate "under the Constitution
hereby established;" and urged that the proposed amendment would
at once vitiate the agreement, and render this solemn declaration a
violation of the facts.

They pointed out that it was not quite accurate to say that the

THE FEDERAL MOVEMENT IN AUSTRALIA. 239

Enabling Acts referred to the " Constitution " only, and not to the
covering clauses. Both in the Enabling Acts and in the Addresses
the " Constitution " meant the whole Bill — the Acts having imposed
on the Convention the duty of framing a Federal Constitution " in
the form of a Bill for enactment by the Imperial Parliament." It
was true that there were ways in which the covering clauses might be
amended without changing the meaning of the Constitution itself;
but the proposed amendment of clause 74 was not of this character.
It had never been admitted that such an alteration would preserve
the intercolonial compact of the electors.

They feared that the amendment of clause 74 would encourage
the persistent opponents of the Bill to renew their agitation. A fresh
referendum would involve expense, delay, and vexation ; and if a
referendum were not granted it would be truly asserted that the Bill
no longer contained the compact accepted by the people. In either
case, the initiation of the Commonwealth would be embittered by the
introduction of issues fruitful in strife.

They had hitherto forborne to dilate on the disadvantages of the
present system of appeals to the Privy Council ; for not only were the
delay and expense incapable of serious dispute, and the evils patent
which were inseparable from the want of judicial knowledge of
Australian laws and conditions, but the court as at present constituted
was not attempted to be defended. Whether its proposed recon-
stitution would suffice from the Australian point of view would
depend on subsequent Imperial legislation. When Australia had at
length, after infinite pains, formulated a scheme which satisfied
Australian requirements, it would be manifestly unfair to postpone its
adoption pending the consideration of a measure not yet prepared,
and which might, or might hot, be satisfactory.

The substantial questions were : — (1) whether clause 74 dero-
gates from the rights of other parts of the Empire ; and (2) even if
it technically appears to do so, whether its operation would injuriously
affect other parts of the Empire. The delegates confessed their
inability to see that an affirmative answer could be given to either
question. The clause expressly preserved the rights — or, in its own
words, the " public interests " — of every part of the Queen's
Dominions outside the Federation. If the words "public interests"
had no technical meaning, they must be construed in their ordinary
and common-sense signification, which was sufficiently definite.

They elaborated the arguments for the final interpretation in
Australia of the Australian Constitution. The capacity and integrity
of Australian Judges would not be disputed. The contention that
clause 74 would " tend to destroy uniformity of decision on constitu-
tional questions" was untenable. The principles of interpretation of
statutes were so well understood that lack of uniformity in that
regard was out of the question ; and in their application to the words
of the Australian Constitution the question of uniformity with
decisions given on (say) the Canadian Constitution would not arise.
Uniformity of decision as to Constitutions of different design would
be as unattainable as it was undesirable. Judicial knowledge of local
conditions was essential to true interpretation.

240 HISTORICAL INTRODUCTION.

To the contention that the final decision in Australia of a few
Australian questions would weaken a '' link of Empire/' and that
uniform interpretation of the law would facilitate that unity of action
which would lead to a real Federation of the Empire, the Delegates
replied that " unity of action " and " uniform interpretation of the
law " seemed to them wholly unrelated, and certain to remain so.
They reflected with pride that there were sentiments which would
constitute eternal links of Empire. " The consciousness of kinship,
the consciousness of a common blood and a common sense of duty, the
pride of their race and history — these are the links of Empire ; bands
which attach, not bonds which chafe. When the Australian fights
for the Empire, he is inspired by these sentiments; but no patriotism
was ever inspired or sustained by the thought of the Privy Oonncil,"

The Delegates assured Her Majesty's Government that the
proposed amendment, even through a covering clause, could not fail
to be distasteful and harassing to the Australian people. " If they
accepted the Constitution with such an amendment, it would be
because they were made to choose between the bowl of intervention
and the dagger of delay."

In conclusion, they submitted that the object of those who sought
" to draw closer together all parts of the Empire " would be best
served in Australia by never permitting its Federation to be placed in
even apparent opposition to "the larger question of Imperial
Federation." So far from there being any conflict between the two,
it had always been maintained in the colonies that local union was an
essential preliminary to any practical scheme of Imperial co-operation.
The suggestion that they were antagonistic was therefore to be
deprecated, as it was not only unjustified, but must deal a serious
blow in Australia to the prospects of Imperial Federation.

" The Delegates therefore plead most earnestly with Her
Majesty's Government that effect may be given to the representations
made by the Australian Premiers in their recent telegram. That
despatch makes it clear that the clause as it stands was repeatedly
considered and ratified by Convention, Premiers, and people; that
the electoral adoption of the Bill is a mandate to Executives and
Legislatures to seek its enactment in the form which the people gave
it by their representatives, and confirmed by their votes ; that the
Premiers decline to accept alterations, because that course is un-
authorized in view of the mandate, and would therefore be improper;
and that they decline to authorize others to do on their behalf that
which they cannot rightly do themselves. This request implies no
questioning of the trusteeship of Her Majesty's Government, of the
wisdom of Parliament, or of its sovereign power ; but often it has
been the truest wisdom of sovereignty to abstain from the exei'cise of
its power, or so to exercise it as only to win the gratitude of those
who are subject to its authority."

This Memorandum was subscribed by the Delegates of four of
the federating colonies ; but Mr. Dickson, the Queensland Delegate,
refused to sign it, on the ground that to continue to press upon the
Imperial Government correspondence which might lead to further
arguments would invite delay in presenting the Bill to Parliament,

THE FEDERAL MOVEMENT IN AUSTRALIA. 241

with a possibility of imperilling its immediate consideration. In a
subsequent Memorandum to the Colonial Office, dated 5th May, Mr.
Dickson explained that a further reason for his refusal to sign was " a
conviction that the maintenance of plenary appeal to the Privy
Council, notwithstanding the provisions ot the Bill, is regarded with
most cordial approval by every loyal subject — certainly in Queensland
— and, I believe, generally throughout Australia." He added that
since their arrival in London, the Delegates had had the honour and
immense advantage of consultations with the Attorney-General, Sir
Richard Webster, and Sir Robert Finlay, Solicitor-General, who, at
interviews and in the reply to the Delegates' first Memorandum, had
expressed arguments for the maintenance of full appeal which seemed
to him to be practically unanswerable.

Final Imperial Memoraxdum. — On 4th May, the Imperial Govern-
ment addressed a final Memorandum to the Delegates. They said
that a detailed reply to the Delegates' arguments would merely
involve repetition of their previous Memorandum ; but there were
one or two points which deserved a brief comment. First, it could
not fairly be contended that the referendum on the Bill was to be
taken as an unqualified and considered ratification of every detail of
the Constitution, and that no single provision could be altered without
contravening the decision of the electors. Next, as to the alleged
disadvantages attending appeals to the Privy Council, they did not
believe that there was such delay and expense as suggested, and were
not aware of any patent evils arising from want of knowledge of
Australian laws and conditions. It had never been admitted, nor
could it be justly asserted, that the Judicial Committee as at present
constituted was incapable of defence. They referred to the state-
ment, in their first Memorandum, that the administration of justice
by the Privy Council had, on the whole, been such as to command
the confidence of the Empire. This statement was amply justified by
the history of that Tribunal, and no inference to the contrary could
be drawn from any proposals for improving its constitution. The
excellent work which it had done in deciding the difficult and delicate
questions arising between the Dominion and the Provinces in Canada
was in itself a complete refutation of such an idea. The proposed
amendments were based upon no distrust of the people of Australia ;
the sole desire of the Government was that, in a matter which affected
the whole Empire, the Bill should be passed in a form which would
be best alike for Australia and for every other part of the Queen's
Dominions. In this endeavour they confidently hoped for the co-
operation and support of the Australian people.

Delegates' Fln'al Memoravdcm. — To this the four Delegates
replied briefly with yet another Memorandum dated 8tli May. They
agreed that no useful purpose would be served by further written
discussion of the proposed amendments. They denied, however, that
the amendment as to appeals was in any sense " a detail of the
Constitution." It had been treated from the first, on both sides, as
vital. To the suggested amendment in regard to the Colonial Laws
^ alidity Act they had made no reference in their second Memorandum,
as they had understood that it had been abandoned. Without re-

242 HISTORICAL INTRODUCTION.

ceding from theii' previous opinion, they now urged that such an Act
ought not to apply to great self-governing communities like the
Dominion and the Commonwealth, whose statutory authority should
be subordinate only to that of the Imperial Parliament when exercised
after the establishment of their Constitutions and expressly applied.
They trusted that even now the Imperial Government might be
willing to provide by separate legislation for this and any other
matter they might consider essential, passing the Commonwealth Bill
without amendment as desired by the peoples. Parliaments, and
Governments of the colonies. For the immediate and ultimate
consequences if the suggested amendments were made the Delegates
could not be held responsible. If they had been outspoken and
tenacious of their views, the sincerity of their apprehensions would,^
no doubt, be accepted as sufficient justification.

Introduction op the Bill. — On 14th May, Mr. Chamberlain intro-
duced the Commonwealth Bill into the House of Commons. The Bill
as introduced differed from the draft of the Convention in the
following particulars : —

In the preamble, the words " and under the Constitution hereby
established " were omitted. In covering clause 2, the words '' This
Act shall bind the Crown " were omitted, and the clause conse-
quentially amended so as to read "The provisions of this Act and
of the Constitution set forth in the schedule to this Act," &c. The
blanks in the preamble and in covering clause 3 were filled in, and in
the latter clause the words providing for the admission of Western
Australia as an Original State were inserted. To covering clause 5
the following words were added : — " Notwithstanding anything in the
Constitution set forth in the schedule to this Act, the prerogative of Her
Majesty to grant special leave to appeal to Her Majesty in Council may
be exercised with respect to any judgment or order of the High Court of
the Commonwealth or of the Supreme Court of any State." To the
definition of " Commonwealth " in covering clause 6 the following
words were added : — " and the laws of the Commonwealth shall be
colonial laws within the meaning of the Colonial Laws Validity Act,
1865." Covering clause 9 was altered to read : — " Subject to the
foregoing provisions, the Constitution of the Commonwealth shall be
as set forth in the schedule to this Act." Before the Constitution the
word "SCHEDULE" was inserted; and at the end of the table of
divisions of the Constitution the words "The Schedule'^ were omitted.

In the Constitution itself, the blank in clause 26 was filled in,
with an alternative provision in the event of Western Australia being
an Original State. In clause 42, the words "to this Constitution"^
were added after "schedule." Clause 74 was omitted, and the last
paragraph of clause 78 was placed as clause 74. In clause 95, after
"Western Australia," the words ''if that State be an Original State"
were added. In clause 125, the words "if New South Wales be an
Original State " and " if Victoria be an Original State " were omitted,
with consequential amendments. At the end of the Constitution, the
word " The " before " Schedule " was omitted.

In introducing the Bill, Mr. Chamberlain said, to a crowded and
enthusiastic House, that it marked an era in the history of Australia,

THE FEDERAL MOVEMENT IN AUSTRALIA. 243

and a great and important step towards the organization of the British
Empire. This Bill — the result of the careful and prolonged labours
of the ablest statesmen of Australia — enabled that gi-eat island con-
tinent to enter at once the widening circle of Euglish-speaking
nations. It would be in the interests of Australia, aud also of the
Empire, rendering the relations between the colonies and the mother-
land more cordial, more frequent, and more unrestricted. " Therefore
we all of us — independently of party — welcome the new birth of
which we are witnesses, and anticipate for these great, free, and
progressive communities a future even more prosperous than the past,
and an honourable and important position in the history of the
Anglo-Saxon race."

He then briefly sketched the history of the movement, and lauded
the services of Sir Henry Parkes, Sir Samuel Griflith, and Mr.
Barton. He described the Bill as " a monument of legislative
capacity." Though it might not be perfect, yet, considering the
magnitude and variety of the interests dealt with, no praise could be
too high for those whose moderation, patience, skill, mutual considera-
tion, and patriotism, had been able to produce so great a result.

He contrasted the Constitution with tliat of Canada, and briefly
outlined its provisions. The Bill had been prepared by the Australian
people ; and though he denied altogether that Australia regarded the
Imperial Parliament merely as a court for the registration of their
decrees — though he was convinced that the Australian people would
be neither offended nor insulted at the alteration of a word or even a
clause — he did think that they expected a reasonable regard to their
opinion whenever it had been conclusively shown, and to those rights
of self-government of which they had made so magnificent a use. The
principles on which the Imperial Government had dealt with the Bill
were these. They had accepted without demur, and they ask' d the
House to accept, every word, every line, every clause, which dealt
exclusively with the interests of Australia. But where the Bill
touched the interests of the Empire as a whole, or of Her Majesty's
subjects or possessions outside Australia, the Imperial Parliament
occupied a position of trust which it was not the desire of the Empire
— nor, he believed, of Australia — that they should fulfil in a formal
or perf unctoi-y manner. In accordance with these principles they had
made some amendments ; but they had refused — even at the desire of
Western Australia aud Xew Zealand — to make amendments where
Imperial interests were not affected.

With regard to the Colonial Laws Validity Act, he proposed to
make its application clear. The Delegates had recently raised a new
point — whether the Act ought to apply to great Commonwealths like
Australia and Canada. He admitted that this was a perfectly fair
point to raise ; but such an important change could not be introduced
without mature consideration, and consultation with both Canada and
Australia. He thought that clause 74 of the draft Bill would weaken
a link of Empire. Ho admitted that those links depended entirely on
freewill and assent ; but before agreeing to so serious a change, he
wanted to be quite certain that it had behind it the whole force of
Australian opinion. The resolutions of the Premiers did not indicate

244 HISTORICAL INTRODUCTION.

that there would be any strong feeling in Australia against the
amendments. The Governments of three out of seven colonies —
Queensland, Western Australia, and New Zealand — were in favour of
the amendments ; so were the Chief Justices of all the colonies, and
an enormous preponderance of the newspapers of Australia.

With regard to the reconstitution of the Supreme Court of the
Empire, he admitted that the tentative provisions of the Judicial Com-
mittee Amendment Act, 1895, for the appointment of Colonial Judges
to the Privy Council, had not been satisfactory. The question of
constituting a new Court required further consideration ; but, mean-
while, he proposed to introduce a Bill to provide for the appointment
of a representative from each great colonial possession and from
India to the Privy Council ; such representatives to hold office for
seven years, to sit during that time as Lords of Appeal, to receive
from the Imperial Exchequer the salary of Lords of Appeal, and to
have life peerages.

Sir Kenry Campbell-Bannerman, leader of the Opposition,
expressed regret and disappointment that the Government had not
felt themselves obliged to accept the Bill in its entirety. He thought
that any proposed amendments should have been formulated and
submitted to Australia at an earlier stage, and that Conferences and
Memoranda in the Jubilee Year were not enough, in view of the many
subsequent opportunities for intervention. The Government, by
reserving action, had in effect, though not in intention, flouted
Australia. He deprecated the conduct of the Government in going
behind the opinions of the accredited representatives of Australia.

Mr. George Denison Faber, the new member for York, spoke
of the appeal clauses from an experience of nine years as Registrar
of the Privy Council. He pointed out that the nominal strength
of the Privy Council was greater than that of the House of
Lords; the real trouble was when both were sitting. He opposed
amalgamation, but thought that the time had come for the estab-
lishment of a new Court altogether, and the appointment of more
paid Judges. Sir Charles Dilke was glad that the substantial
amendments had been reduced to two, and thought that Mr.
Chamberlain had failed to show any vital necessity for amending the
Bill. Mr. Yicary Gibbs spoke in favour of the amendments.
Mr. Haldane saw no necessity for postponing the amalgamation of
the Judicial Committee and the House of Lords ; and urged that
so long as the jurisdiction of the House of Lords was retained, it
would be impossible to preserve the status of the Privy Council.
Whilst there were two tribunals, one was starved to keep up the
other, and judicial strength inevitably gravitated to the House of
Lords. Mr. Stanley Leighton agreed that the objections to the
present constitution of the Judicial Committee were well founded.
The first reading was carried on the voices, with cheers.

The First Compromise. — In spite of the apparently uncompro-
mising attitude of the Imperial Government, the Delegates did not
despair of securing some modification of the proposed amendment.
They had failed in what they believed to be their mandate to
endeavour to secure the passage of the Bill without amendment; and

THE FEDERAL MOVEMENT IN AUSTRALIA. 245

when the amended Bill had been actuallv introduced, they conceived
that the position was altered, and that they were authorized to
negotiate with a view to securing a compromise. The publication of
the Blue Book, containing the correspondence between the Delegates
aud the Imperial Government, had greatly increased public interest in
the question ; and the English press, whilst generally approving the
resolve of the Govei'nment to protect Imperial interests, showed a
marked sympathy with the aims of the Delegates. The Delegates had
several interviews with Mr. Chamberlain and the Crown Law Officers,
who met them cordially, and were willing to concede what they could,
consistently with the principle of reserving the right of appeal to the
Privy Council where interests outside Australia were affected. At
last, on 19th May, Mr. Chamberlain offered to substitute for the first
paragraph of clause 74 the following words : —

"No question, howsoever arising, as to the limits inter se of the
constitutional powers of the Commonwealth and those of any State
or States, or as to the limits inter se of the constitutional powers of
any two or more States, shall be capable of final decision except by
the High Court, and no appeal shall be permitted to the Queen in
Council from any decision of the High Court on any such question
unless by the consent of the Executive Government or Governments
concerned, to be signified in writing by the Governor-General in
the case of the Commonwealth, and by the Governor in the case of
any State."

The second paragraph of clause 74 was unaltered, except that to
the power to make laws limiting the right of appeal was added a
proviso that " any proposed laws containing any such limitation shall
be reserved by the Governor-General for Her Majesty's pleasure."
To clause 73, after " final and conclusive," it was proposed to add
" unless the Queen grants special leave to appeal in accordance with
section 74."

Tlie object of this provision was to make the decision of the
High Court final on questions as to the limits of Federal and State
powers inter se, unless both parties — or, if the parties were private
citizens, the Governments whose powers were affected — desired an
appeal. The Delegates, at their own request, Avere authorized by
their Governments to secure the nearest approach possible to the
original Bill ; and as this was offered by Mr. Chamberlain as the
utmost limit of concession, they expressed their approval of it, subject
to possible verbal improvements.

Second Reading of the Bill. — On 21st May, Mr. Chamberlain
moved the second reading of the Bill in the House of Commons.
^Vith regard to the Colonial Laws Validity Act, he announced that
after further discussion with the Delegates, the Government had
decided that the best way of removing doubts would be to omit the
definition of "colony" in covering clause 6. It would then be
unnecessary to make any further amendment in this respect. With
regard to Privy Council appeals, he reaffirmed the principle of non-
interference with purely Australian interests, and vigilance for
Imperial interests. He pointed out that clause 74 of the draft
Constitution recognized this distinction by making an exception where

246 HCSTORICAL INTRODUCTION.

" the public interests " of some part of Her Majesty's dominions out-
side Australia were involved ; but the distinction did not go far
enough. It was uncertain whether the phrase " public interests "
would cover, for instance, the private interests of investors, or of any-
body of Her Majesty's subjects. Moreover, foreign relations were of
equal importance with Imperial relations. The proposals of the
Imperial Government had been before Australia for a week, and had
been in most cases favoui-ably considered. The Delegates, too, finding
it impossible to carry out what they believed to be their mandate to
secure the passage of the Bill without amendment, had been most
considerate, and he had now arrived at an absolute agreement with
four of them. He then read and explained the proposed new clause.
With regard to the power of the Federal Parliament to limit the right
of appeal, the Delegates had pointed out to him that a similar power
was inherent in the Parliaments of the Australian colonies, subject to
the reservation of the Bill exercising such power. Accordingly, it was
proposed to grant this right to the Commonwealth, subject to an
absolute statutory requirement that such Bills should be reserved.

Mr. Asquith, for the Opposition, expressed his gratification at
Mr. Chamberlain's announcement of a settlement. He admitted the
trusteeship of the Imperial Parliament, but thought that the danger
of clause 74 had been exaggerated in some quarters. Mr. Henniker
Heaton, Mr. Blake, Mr. James Bryce, and Mr. S. Evans joined in the
congratulations. The Attorney-General expressed his appreciation of
the tone of the debate, which was concluded by Mr. W. Redmond and
Mr. T. M. Healy declaring, on behalf of Ireland, their envy at the
rights of self-government accorded to Australia. The Bill was then
read a second time with cheers, and taken into Committee pro forma.

Australian Criticisms. — In Australia, however, the suggested
compromise was received, first with hesitation, and then with distinct
disapproval, both the drafting and the policy of the new clause being
condemned. On 24th May, a telegram seems to have been sent by
the Government of New South Wales to Mr. Chamberlain, indicating
acceptance of the arrangement by the Premiers ; but a study of the
cabled text of the clause changed the situation. In Queensland,
Sir Samuel Griffith pointed out that the provision that no con-
stitutional question should be "capable of final decision except
by the High Court " was a clumsy and inaccurate mode of saying
that all appeals in such cases should be brought to the High
Court alone. He also argued that this would be a restriction, and
not an extension, of the right of appeal to the Privy Council given
by the original clause — under which he contended that appeals, even
in constitutional cases, would lie from the State Courts direct to the
Privy Council. This, however, was not the generally received inter-
pretation of the original clause, nor was it the intention of the
Convention, wliich clearly intended that the prohibition of appeals to
the Privy Council in constitutional matters should include appeals
from the vState Courts ; (see Historical Note to sec. 74 infra). But his
strongest point was that in cases between private suitors, in which a
constitutional point arose, a party's right of appeal ought not to be
made dependent on the consent of the Executive Government of his

THE FEDERAL MOVEMENT IN AUSTRALIA. 247

State or of the Commonwealth. In all the colonies it was forcibly
urged that the interference of the political with the judicial depart-
ment would be fraught with danger. Mr. Philp threatened that, if
the new amendment were adhered to, he would demand the insertion
of a clause requiring the assent of the Queensland Parliament before
the Bill became operative in that colony. In South Australia, the
Chief Justice, Sir Samuel Way, commented on the new clause as being
not only obscure, but dangerous, novel, and unauthorized.

Meanwhile, to remove ambiguities and meet some of the criticisms
from Australia, the first part of the proposed clause was redrafted as
follows : —

" Xo question, however arising, as to the limits inter se of the
constitutional powers of the Commonwealth on the one hand, and
those of any State or States on the other, shall be capable of final
decision by any Court other than the High Court, except that an
appeal may be permitted to the Queen in Council from any decision of
the High Court on any such question by the consent of the Executive
Governments concerned, whether parties or not to the litigation, the
consent to be signified by the Governor-General in the case of the
Commonwealth, and by the Governor in the case of a State."

This verbal improvement, however, did not meet the main
objections to the proposed clause ; and on 14th June the Premiers of
the southern colonies sent a joint telegram to Mr. Chamberlain, stating
that opinion throughout Australia was strongly opposed to subjecting
the right of appeal to the consent of the Executive Governments.
They urged the reconsideration of the proposal to pass the Bill with-
out amendment. If that was impossible, they said that the original
proposal to preserve the prerogative right of appeal intact would be
less objectionable than the new proposal.

The Final Compromise. — Sir George Turner, in an interview,
suggested the substitution of the leave of the High Court for that of
the Executive Councils. Mr. Wise and Mr. O'Connor telegraphed the
same suggestion to Mr. Barton; but on 16th June, just before the
arrival of this telegram, Mr. Chamberlain, in consultation with the
Delegates, had at last resolved to make this further concession, and
to offer clause 74 in the form in which it now stands in the Constitution.
This was gladly accepted by the Delegates, including Mr. Dickson.
The Queensland Government withdrew their protest, and offered no
objection. The Government of Victoria expressed approval of the
clause as altered ; and the Government of South Australia, while re-
iterating their inability to accept any amendment, telegraphed that
they did not anticipate any difficulty from the amendment now pro-
posed. The Government of Western Australia telegraphed that the
new proposal was preferable to the previous one, but that they would
have preferred an appeal as a right, without leave. In New South
Wales — the only colony in which Parliament was then sitting — the
Government submitted to both Houses a resolution affirming that the
amendment now proposed was not such an important departure from
the original Bill as would justify any action which would further delay
Fedei-ation. This was carried without division in the Assembly on
21st June, and in the Council on 27th June.

248 HISTORICAL INTRODUCTrON.

The Bill in Committee. — On Monday, 18th June, the discussion
of the Bill in Committee of the House of Commons was begun. In
covering clause 5, Mr. Chamberlain moved the omission of the words
which had been inserted to save the prerogative of appeal in all cases
(see p. 242, supra). He suggested that as some of the verbal amend-
ments which were on the notice paper in his name hinged upon the
acceptance of clause 74 as now proposed, this Avould be the best time
for a general debate on the subject of appeals. He described the
proposed settlement as an " arrangement " rather than a compromise,
as neither party gave up anything to which they attached importance.
The Australian objections to the previous proposal had been (1) that
it would limit the right of appeal from the State courts more than
was done by the original Bill — it being thought in some quarters that
the original Bill did not prohibit appeals from the State courts to the
Privy Council in constitutional cases ; (2) that it introduced the
Executive into judicial questions. The new arrangement — in connec-
tion with which he acknowledged the assistance given by Sir Samuel
Griffith — met these objections, and satisfied all the five Delegates ;
though no reply had yet been received from their Governments.
Several members of the Opposition complained that the House was
placed in a difficult position by being asked to debate so important a
clause on such short notice, and without information as to the views
of the Australian Governments. Eventually, after some discussion,
the debate was adjourned till Thursday, 2 1 st June.

On that date the Committee stage was resumed. Mr. Chamber-
lain read telegrams announcing that the Governments of Victoria,
Queensland, South Australia, and Tasmania, were satisfied with the
proposed arrangement, and that the Parliament of New South Wales
was being consulted, and would probably agree. He pointed out that
the right of appeal to the Privy Council would be the same as in
Canada, with the trifling exception — which he was almost inclined to
think an improvement — that in certain rare cases the leave to appeal
would be granted by the High Court and not by the Privy Council.
Mr. Haldane and Mr. Bryce thought that in some respects — and
particularly as regards cases involving the public interests of Imperial
possessions outside the Commonwealth — the clause in the original Bill
was better than that now proposed ; and they suggested that there
would be some ground for the argument that in constitutional cases
the High Court was co-ordinate with, and not subordinate to, the
Privy Council. This contention was answered by Sir William Anson
and by the Attorney-General, Sir IJobert Finlay. Mr. Asquith
admitted that as the colonies had assented to the arrangement, it
should be carried into effect. Mr. Chamberlain's amendment to
covering clause 5 was agreed to.

In covering clause 6, the reference to the Colonial Laws Validity
Act was omitted, as was also the definition " Colony shall mean any
colony or province." Covering clause 9 was restored to its original
form, the Constitution being thus appended to the clause, instead of
forming a Schedule to the Act.

In the Constitution itself, the original last paragraph of clause
73 was restored to its position, instead of standing as clause 74, and

THE FEDERAL MOVEMENT IN AUSTRALIA. 249

the new clause 74 was inserted according to arrangement. In the
Preamble, the words "and under the Constitution hereby established"
Avere restored. The Bill was then reported with amendments.

The Bill in the House of Lords. — In the House of Lords, the
Bill was read a first time on 26th June. The second reading was
moved on 29th June by the Earl of Selborne, Under-Secretary for
the Colonies. Earl Carrington accused Mr. Chamberlain of imprudence
which had imperilled the Bill, and characterized his settlement as an
unconditional surrender. The Earl of Halsbury, Lord Chancellor,
deprecated this as a partizan attack which would mar the harmony
and unanimity of the Empire's acceptance of the Bill. Lord Davey
thought the appeal clause was not a happy solution of the difficulty,
and hoped that the colonies would hereafter modify it. The Earl of
Jersey, the Earl of Kimberley, Lord James of Hereford, Lord Russell
of Killowen, Viscount Knutsford, and Lord Brassey, spoke in terms
of congratulation. The Bill was read a second time and taken into
committee j)ro forma. On 3rd July, it was carried through Committee
without amendment, and on 5th July it was read a third time and passed.

The Royal Assexi. — On 9th July, the Queen gave her assent to
the Bill. At the request of the Delegates, Her Majesty signed the
Commission, declaring her assent to the Bill, in duplicate, and gave
Mr. Barton one of the copies, as well as the pen, inkstand, and table
used by Her Majesty, to be preserved in the Federal Parliament
Buildings. On the same day, in the House of Lords, the House of
Commons having been summoned to the bar, the Lords Commissioners
(the Earl of Halsbury, the Earl of Hopetoun, and the Earl of Kintore),
announced the Royal assent to the Bill, which was received with cheers.

Adoptiox by Western Australia. — On 17th May — three days after
the introduction of the Commonwealth Bill in the House of Commons —
the West Australian Parliament met, and an Enabling Bill was at
once introduced. It was on the lines of the Enabling Acts passed in
the other colonies, and provided for the submission of the Constitution
to a referendum of the people of the colony, and for an address to the
Queen in the event of the vote being in the affirmative.

On 23rd May Sir John Forrest moved the second reading, and
announced that he would vote for Federation, though he did not see
that it would be any great benefit to Western Australia for some time.
The Bill as introduced provided for a referendum on the existing
rolls; but during the debate the Government consented to have it
taken in accordance with the newly extended franchise of the colony
(see p. 71 supra), so that all adults — men and women — who had been
twelve months in the colony should be entitled to vote.

The second reading was carried without a division on 31st May.
In the Council slight amendments were made, which were accepted
by the Assembly. On 13th June the Bill was assented to.

The referendum was fixed for 31st July, and the campaign for
and against the Constitution began at once. Sir John Forrest fought
hard for the Bill, though some of his colleagues opposed it. The
logical and sentimental argument for the completion of the continental
union was made the most of. The ultimate entry of Western
Australia into the Commonwealth was recognized as inevitable; and

■250

HISTORICAL INTRODUCTIOK

it was forcibly urged that even if the immediate benefits of Federation
to Westera Australia were not obvious, her interests would be better
secured by joining the union at the outset, and helping to mould the
federal policy, than by standing aloof. The strongest argument of
the opponents was that a federal tariff with intercolonial freetradt
would dislocate the finances of the colony, and that section 95, allow-
ing Western Australia to retain intercolonial duties on a diminishing
scale for five years, was inadequate to meet the difficulty. This
argument was assisted by appeals to intercolonial jealousy and by
vague allusion to the terrors of the unknown. The stronghold of thr
federal party was on the goldfields, where the population was largely
recruited from the other colonies ; whilst the most solid opposition
came from the agricultural interests, which dreaded the removal of
the duties on intercolonial produce.

Though federalists were confident of victory, the decisive issue
was a surprise. The result of the poll was a vote of 44,800 for the
Constitution, and 19,691 against, leaving an affii-mative majority of
25,109. An analysis of the voting gives the following result : —

—

Yes,

No.

Majority.

Metropolitan ^Electorates

Fremantle Electorates

<lokllields Electorates

Country Electorates

7,008

4,687

26,. 330

6,775

4,380
3,141

1,813
10,357

2,628
1,546
24,517
(Min. 3,582)

Total

44,800

19,691

25,109

On 21st August, both Houses of the Parliament of Western
Australia passed addresses to the Queen, praying that Western
Australia might be included as an Original State of the Common-
wealth in the Proclamation shortly to be made.

The Royal Proclamation. — The issue of the Queen's Proclamation
fixing the day for the establishment of the Commonwealth had been
withheld pending the issue of the referendum in Western Australia,
in order to enable her Majesty to be " satisfied that the people of
Western Australia have agreed " to join the Commonwealth. Mean-
while some telegraphic communications passed between the Imperial
and Colonial Governments as to the date on which the Commonwealth
should be established. The prevailing opinion was in favour of the
1st January, 1901, the first day of the twentieth century — a dramati'
and siofnificant date for the birth of Australian nationhood. Th'
.sentimental argument was reinforced by the practical one that the Isi
January was the beginning of a financial half-year in all the colonies.
On the other hand there was some advocacy of the 26th January —
the anniversary of the foundation of New South Wales in 1788 — which
was celebrated in several of the colonies as the patriotic festival of
the year. The date chosen was the 1st January; accordingly, on 17th
September, 1900, the Queen signed the Proclamation declaring that on
and after the first day of January, 1901, the people of New Soutli
Wales, Victoria, South Australia, Queensland, Tasmania, and Western

THE FEDERAL MOVEMENT IX AUSTRALIA. 251

Australia should be united in a Federal Commonwealth under the
name of the Commonwealth of Australia.

Thus all the five colonies of the mainland of Australia, and also
the adjacent island of Tasmania, become Original States of the
Commonwealth which is to be inaugurated on the first day of the
twentieth century. The Commonwealth, as few dared to hope it
would, comes into existence complete from the first — " a nation for
a continent, and a continent for a nation." The delays at which
federalists have chafed have been tedious, and perhaps dangerous,
but they have been providential ; they have given time for the gradual
but sure development of the national spirit in the great colonies of
Queenshind and Western Australia, and have prevented the establish-
ment of a Commonwealth of Australia with half the continent of
Australia left, for a time, outside.

But though Australian union has been completed, Australasian
union has not. New Zealand — separated from Australia by 1,200
miles of sea, and correspondingly more self-contained and less in
touch with the national sentiment of Australia — has not yet decided
to enter the Commonwealth. The choice between union or isolation,
which has not yet been directly presented to the people of New
Zealand, cannot long be deferred. On 19th October, 1900, a reso-
lution was passed by the New Zealand House of Representatives,
on Mr. Seddon's motion, declaring it to be desirable (a) That a Royal
Commission should be appointed to inquire into and report upon the
desirability or otherwise of New Zealand becoming a State of the
Commonwealth : {h) that if the Commissioners deem Federation for
the present inadvisable or premature, they should report as to the
establishment of a reciprocal treaty between the Commonwealth and
New Zealand, and indicate the lines on which it should be based :

(c) that the Commissioners entrusted with this all-important matter,
affecting the national life and well-being of New Zealand, should be
conversant with the agricultural, commercial, and industrial interests
of the colony, and be otherwise eminently fitted for their high office :

[d) that they should be empowered to proceed to Australia to take
evidence : and (e) that their report should be presented to the New
Zealand Parliament within ten days of the opening of the next session.

The report of this Commission will be awaited with interest.
Meanwhile Mr. Seddon's " Greater New Zealand " policy (see p. 639,
infra) indicates that he is endeavouring to secure as advantageous
a position as possible for a commercial treaty with the Common-
wealth, in the event of a decision adverse to immediate union.

Appointmext op the Govern'or-Genekal. — On 14th July it was
officially announced that the first Governor-General of the Common-
wealth of Australia would be the Right Honourable the Earl of
Hopetoun, G.C.M.G., then Lord Chamberlain. Lord Hopetoun was
already well known in Australia, having been Governor of Victoria
from 1889 to 1895, during which time he had been one of the most
popular, although one of the youngest, of Australian Governors, and
had earned the reputation of a tactful and capable administrator, and
a worthy representative of the Crown. His choice as the first holder
of the high and honourable office of Governor-Genei-al of the Common-
wealth gave oreneral satisfaction.

252 HISTORICAL INTRODUCTION.

The actual appointment of the Governor-General could not, in
accordance with clause 3 of the Commonwealth Act, be made until
after the issue of the Queen's Proclamation which fixed the date of
the establishment of the Commonwealth. On 21st September Lord
Hopetoun waited upon the Queen at Balmoral Castle, when Her
Majesty invested him with the knighthood of the Order of the Thistle.
He delivered into Her Majesty's hands the wand and badge of the
Lord Chamberlain of Her Majesty's Household, and received the
commission of his appointment as Governor-Cireneral.

Preparations for the Inauguration. — Shortly after the Royal
Proclamation, it was announced that the inauguration of the Common-
wealth, on the 1st January, 1901, would take place in Sydney. The
Parliaments of the six colonies began to legislate, under the authority
of clause 4 of the Commonwealth Act, and sees. 9 and 29 of the
Constitution, for prescribing the method of choosing senators, deter-
mining the times and places of elections of senators, and determining
the electoral divisions for the House of Representatives ; with such
other local legislation as was deemed advisable in view of the
approaching change in the political condition of the colonies.

On 17th September, it was ofiicially announced that the Queen,
on the recommendation of Lord Salisbury, had assented to a visit by
the Duke and Duchess of York to Australia, early in the year 1901,
when the Duke of York would be commissioned by Her Majesty to
open the first session of the Parliament of the Commonwealth in her
name. Although Her Majesty naturally shrank from parting from
her grandson for so long a period, she fully recognized the greatness
of the occasion which would bring her colonies of Australia into
federal union, and desired to give this special proof of her interest in
all that concerned the welfare of her Australian subjects. Her
Majesty wished at the same time to signify her sense of the loyalty
and devotion which had prompted the spontaneous aid so liberall}
offered by all the colonies in the South African War, and of the
splendid gallantry of her colonial troops.

Conclusion. — During the past century the foundations of
Australian nationhood have been laid ; with the new century will
begin the task of building the superstructure. Political barriers have
been broken down, and the constitutional compact which, politically
speaking, creates the Australian people, has been framed, accepteil.
and established. But all this is only the beginning. The new national
institutions of Australia have to be tested in the fire of experience ;
provincial jealousies have to be obliterated; national sentiment has
to be consolidated ; the fields of national legislation and national
administration have to be occupied. Australian statesmanship and
patriotism, which have proved equal to the task of constructing tli<'
Constitution, and of creating a new nation within the Empire, are now
face to face with the greater and more responsible task of welding
into a harmonious whole the elements of national unity, and of guiding
the Australian people to their destiny — a destiny which, it may br
hoped, will always be linked with that of the mighty Empire of which
they form a part.

LrST OF MEMBERS, &c.

253

LIST OF MEMBERS OF FEDERAL CONVENTIONS,
CONFERENCES, &c.

Intercolonial A.N.A. Federation Conference, Melbourne,

January, 1890.

OFFICERS :

President. — Sir John C. Bray, K.C.M.G., Speaker of the House of Assembly,

South Australia.

Vice-Presidents. — Messrs. G. H. Wise and B. B. NicoU, M.P..

Secretaries. — Messrs. F. C. Wainvrright, W. Burnet, and J, W. Hill.

DELEGATES.

Mr. E. Bowling

Mr. \V. S. Dowel, M.P.

Mr. J. W. Hill

Mr. B. B. NicoU, M.P.

New South Wales.

Mr. Xinian Melville, M.P.

Mr. H. Slatyer

Mr. R, Thompson

Mr, J. T. Wilshire, M.P.

Sir John C. Bray, M.P.
Mr. H. H. Barrett
Hon. J. C. F. Johnson, M.P.
Mr. \V. Burnet

Mr. W. Maley

South Australia

Mr. S. H. Prior
Mr. W. J. Sowdeu
Mr. C. Tucker
Mr. W. H. Wadey

Western Australia.

Mr. E. p. Nesbit

Mr. J. Alls

Mr. T, J. Connelly
ilr. J. C. Bottomley
Mr. Field Barrett

Queensland.
Mr. J. R. Bradsliaw

Victoria.

Mr. J. W. Larter
Mr. A. J. Peacock, M.P.
Mr G. H. Wise
Mr. F. C. Wainwright

Mr. W. V. Brown

254 LIST OF MEMBERS OF

AUSTRALIAN NATIVES' ASSOCIATION, VICTORIA.

List of Presidents of the Board of Directors, from its
inception to June, 1900 :—

Mr,

T. O'Callaghan

Melbourne

1877 and 1878

S. Cadden

Ballarat

1879 and 1880

M. J. Cahill

Bendigo

1881

Wm. Anderson

Creswick

1882

R. H. Hart

Stawell

1883

0. E. Wilson

Ballarat

1884

A. J. Peacock, M.L. A....

Creswick

1885, 1886, I89.S

T. J. Connelly

Bendigo

1887

J L. Piirves, Q.C.

Melbourne

1888, 1889

D. J. Wheal

Ballarat

1890 .

G. H. Wise

Sale

1891

J. W. Larter

Ballarat

1892

G. Fitzsimmons

Prahran

1894

.J. W. Kirton, M.L. A. ...

Ballarat

1895

J. H. Cook, M.L. A. ,..

Brunswick

1896

R. F. Toutcher, M.L. A,..

Richmond

1897

Dr.

C. Carty Salmon, ML. A.

Avoca

1898

Mr,

. E. E. Roberts

Flemingtoii

1899

Walter Skelton

DunoUy

1900

NATIONAL AUSTRALASIAN CONVENTION, 1891.

OFFICERS :

President.— The Honourable Sir Henry Parkes, G.C.M.G., M.L. A.

Vice-President. — The HonourableSir Samuel Walker Griffith, K.C.M.G., Q.C, M.L A

DELEGATES.

New South "Wales.

The Honourable Sir Henry Parkes, The Honourable William Henry Suttoi.

G.C.M.G., M.L. A. M.L.C.

The Honourable William McMillan, M.L. A. The Honourable Edmund Barton, Q.C,
The Honourable Joseph Palmer Abbott, M.L C.

M.L. A. The Honourable Sir Patrick Alfred
George Richard Uibbs, Esquire, M.L.A. Jennings, K.C.M.G., LL.D., M.L.C.

New Zealand.
Sir George Grey, K.C.B. TheHonourableSir Harry Albert Atkinson.

Captain William Russell Russell, M.H.R. K.C.M.G., M.L C.

Queensland.

•The Honourable John Murtagh Macrossan, The Honourable Sir Thomas Mcllwraitli,

M. L. A . K . C. M. G. , LL. 1). , M . L. A.

The Honourable John Donaldson, M.L.A. The Honourable Arthur Rutledge, M.L.A
The Honourable Sir Samuel Walker Griffith, The Honourable Andrew Joseph^ ThjTinc.
K.C.M.G., Q.C, M.L.A. M.L.C

The Honourable Thomas Macdonald-Paterson, M.L.C.

FEDERAL COXYENTIOXS, CONFERENCES, i-c. 255

South Australia.
me Honourable Richard Chaffey Baker, John Alexander Ck>ckburn, Esquire, M.I).,

C.W.(t.,ML.C. M.H.A.

The Honourable John Hannah Gordon, The Honourable Sir John William Downer,

M.I^C. K C.M.G., Q.C., M H.A.

The Honourable Sir John Cox Bray, The Honourable Charles Cameron Kingston,
K C M.G., M.H.A. ' Q.C., M.H.A.

The Honourable Thomas Playford, M.H.A.

Tasmania.

The Honourable William Moore, M.L.C. The Honourable Nicholas John Brown,

The Honourable Adye Douglas, M.L.C. M.H.A.

The Honourable Andrew Inglis Clark, The Honourable Bolton i^tafiFord Bird,

M.H.A. M.H.A.

The Honourable William Henry Burgess. The Honourable Philip Oakley Fysh,

M.H.A. M.L.C.

Victoria.

The Honourable Alfred Deakin, M.L.A. The Honourable Henry John Wrixon, Q.C.

The Honourable .James Munro, M.L.A. M.L. A.

The Honourable Lieutenant-Colonel William The Honourable Duncan Gillies, M.L.A.
CoUard Smith, M.L.A. The Honourable Henry Cuthbert, M.L.C.

The Honourable Nicholas Fitzgerald, M.L C. fThe Honourable William Shiels, M.L.A.

"Western Australia.
Ihe Honourable John Forrest, C.M.G., The Honourable John Arthur Wright.

M.L. A. M.L.C.

The Honourable William Edward Marmion, The Honourable John Winthrop Hackett,

M.L.A. M.L.C.

The Honourable Sir James George Lee- Alexander Forrest, Esquire, M.L.A.

Steere, M.L.A. William Thorley Loton, Escjuire, M.L.A.

* Decease reported Slst March. f Actinjr from 2nd to 9th March, during absence of Mr. Wrixon.

COROWA FEDERATION CONFERENCE.

AUGUST, 1S93.

OFFICERS :
Pkesidest.— Mr. B. B. NicoU, M.L. A.
Vice-Presidents. — Messis. J, Wilkinson, M.L.A., E. J. Gorman, A. Jameson, and

Dr. Quick.
Secretary.— Mr. Edward Wilson.
Assistant Secretary. — Mr. E. Lapthorne.
Tbkascrer. — Mr. A. A. Piggin.
FiXAXCE Committee.— Messrs. G. H. Willis, G. H. Smith, C. T. Brewer.

DELEGATES :

Amott, D. ... ... ... Federation League, Yarrawonga.

Barker, S. ... ... ... Protection Liberal and Federation League, Melbourne.

Barrett, Herbert Vice-President Board of Directors of A.N.A., Victoria.

Berryman, (i. H. Federation League, Moama.

Boyle, A. 0. ... ... ... Federation League, Howlong.

Brewer, C. T. ... ... Federation League, Corowa.

Bnd*)n, H . ... ... ... Progress Committee, Germanton.

256

LIST OF MEMBERS OF

Bromfield, H

Brown, A. B. ...
Brown, Andrew U.
Buckley, Allan K.
Caniplin, A.
Chanter, J.M., M.L.A.

Church, W. R

Clifton, W. A

Cook, James
Cowderoy, B. ...
Crockett, M. C. M. ...
Dowling, Edward
Drummond, W. D.
Easterby, W. H.
Edmundson, F. W. ...
Garran, R. R., B.A. ...
(Torman, D.
Oorman, E. J. ...
Grondona, C. H.
Haig, Geo. G. ...

Hallett, C

Hampson, A. J.
Harricks, F. M.
Hemmings, R. ...
Holland, James
Hose, Rev. W. Clarke
Jameson, A.
Kilborn, R.
Lapthorne, Ernest
Lormer, W. J. ...

McGeoch, R

Maloney, W., M.L.A.
Miller, John J. ..

Mitchell, P. S

Morris, W. A. ... ...

Nicoll, B. B., M.L.A...
O'Dwyer, E. D.
O'Grady, Charles
O'SuUivan, E. W., M.L.A.
Peacock, A. J., M.L. A.
Piggin, Alex. A.

Piggin, F. C

Pigott, E. F

Prendergast. G. M.
Quick, John, LL.D.

Rain, W

Ross, Alex.
Ross, John
Russell, Geo.
Shields, John G.
iSloane, J. A. S.

Smith, G. S

Stretton, D

Federation League, Howlong.
Progress Committee, Germanton.
Federation League, Tocumwal.
Federation League, Rutherglen.
Federation League, Mulwala.
Federation League, Koondrook and Barmah.
Young Victoria Patriotic League, Melbourne.
Federation League, Corowa.

Protection Liberal and Federation League, Melbourne-
President Chamber of Commerce, Melbourne.
Federation League, Yarrawonga.
Hon. Secretary A.N. A., Sydney.
Federation League, Berrigan.
Federation League, Howlong.
Federation League, Wodonga.
Federation League, Sydney.
Federation League, Savernake.
Federation League, Berrigan.
Chamber of Manufactures, Melbourne.
Federation League, Wahgunyah.
Chamber of Commerce, Melbourne.
A.N. A., Bendigo.

Young Victorian Patriotic League, Melbourne.
A.N. A., Clifton HiU.
Federation League, Yarrowonga.
Federation League, Corowa.
Federation League, Deniliquin.
Federation League, Rutherglen.
Federation League, Berrigan.

Protection Liberal and Federation League, Melbourne.
Federation League, Mulwala.

Protection Liberal and Federation League, Melbourne.
Municipality, Cootanmndra.
Progress Committee, Tooma.
Vice-President Commercial Travellers' Association,

Melbourne.
President A.N. A., Sydney.
Federation League, Savernake.
Federation League, Rutherglen.
Federation League, Sydney.
President Board of Directors A.N A.
Federation League, Corowa.
Federation League, Corowa.
Progi-ess Association, Cobrani.
President Progressive Political League, Melbourne.
A.N. A., Bendigo.
A.N. A., No. 1 Branch, Melbourne.
Progress Committee, Germanton.
Progress Committee, Germanton.
A.N. A., Numurka.
Federation League, Wodonga.
Federation League, Mulwala.
Federation League, Wahgunyah.
Federation League, Echuca.

FEDERAL CONTENTIONS, CONFERENCES, &c

•257

Taylor, H., D'E.
Thomas, 0. C. ...
Thorpe, -Jas.

Towel, Dr

Warner, Jas.

Whitaker. T

Whitford, F. P.

\Vhitty, H. P

Wilkinson, J , M L.A.

Willis. Geo. H

Wilson, Edw. ...
Young, .J. B

Imperial Federation League, Melbourne.
Imperial Federation League, Melbourne,
Federation League, Wahgunvah.
Federation League, Berrigan.
Municipality, Beechworth.
Federation League, Albury.
Federation League, Wahgunjah.
Federation League, Tocumwal.
Federation League, Albury.
Federation League, Corowa.
Federation League, Corowa.
A.N. A., Bendigo.

PEOPLE'S FEDERAL CONVENTION, BATHURST, 1896.

OFFICERS :

Presidkxt.— Thos. A. Machattie, Esq., M.B.

Vice-Presidents.— Edmund Barton, Esq., Q.C. ; The Hon. F. B. Suttor ; W. P. Bassett,
Esq., M.D., Mayor of Bathurst ; B. B NicoU, Esq., President A.N.A., Sydney;
Lieut. -Col. J. G. Da vies. Chairman of Committees, Tasmania ; The Hon. R. E.
O'Connor, Q C , M.L.C. ; The Rev. Professor Gosman, Victoria.

HoxoRARY Secretary.— The Rev. Arthur J. Webb.

HoxoRARV Assi.STAXT SECRETARY. — G. E. Flannery, Esq., B.A., LL.B.

HosoRART Treasuber.- H. C. Matthews, Esq.

Procedure Committee. — The President (Dr. Machattie), the Secretarj- (the Rev. A. J.
Webb), the Right Rev. Dr. Camidge, the Right Rev. Dr. Byrne, the Right Rev.
Dean Marriott, the Rev. Father Dowling, Dr. Hurst, Dr. Quick, Mr. G. E. Machat-
tie, Mr. M. Meagher, Mr. A. G. Thompson, Mr. Wright, the Hon. Sydney Smith,
M.P.

DELEGATES AND INVITED MEMBERS:
Alcorn, S. A., B. A., M.B. East Maitland Armstrong, J. F. ... Forbes

Archer, Wm

Balls, G.C

Barcla}-, J. B

Barrett, A. C

Barrj'. G. J

Barton, E , M.A., Q.C...

Bassett, E. P

Bassett, W. P., M.D. ...

Batey, Geo. W

Bavister, Thos., M.P. ...
Bea\-i8, Horace Colin . . .
Becher Rev. R. F., B.A.
Bell, Alexander ..
Bell, Colonel, United
States Consul

Callander, Wm

Campbell, Colin H
€anaway, A. P., B.A. ..

Burwood

Sydney

Wickham

Goulburn

North Sydney

Sydney

Carcoar

Bathm-st

Greta

Sydney

Bathurst

Ballarat, Vic.

Sydney

Cobram, Vic.
Echuca- Moama
Svdnev

Beveridge, John ...
Blythe, Chas.
Bond, Robert J. . . .
Bourke, J.
Boyd, John
Brave, T. A., B.A
Brennan, M.

Brewer, C. T

Brown, E. C

BrowTi, D. R

Buckland, Thos

Burns, Wm.

Bj-me, Right Rev. Dr. ...

Byrne, S. A.

Cohen, Solomon ...

Conroy, J. M.

Cook, Hon. Joseph, M.P.

Lithgow

Seliastopol Vic.

Wickham

Murrum burrah

Bathurst

Waratah

Sydney

Corowa

Eaglehawk

Sydney

Croydon

Sydney

Bathurst

Sydney

Cootamundra

Sydney

258

LIST OF MEMBERS OF

Gary, William
Chanter, J. M., M.P. ...
Chippendall, W.
Christie, George ...

Clapin, A. H

Clark, W.

Clarke, George T.
Cockburn, Hon. J. A.,
M.l)

Davies, Lieutenant-Col.,

M.H.A. ... ■ ...

Dickson, S. H

Epps, W

Fielding, Rev. S. G. ...
Finckernagel, Wm.
Flanagan, P. J. ...
Flannery, G. E., B.A.,
LL.B

Gannon, S. H.
Garran, R. R., B.A.
Garrard, Hon. J., M.P...
Gillies, John, M.P.

Halliday, C. W. B.
Hammond, A. C.
Hawthorne, J. S., M '*.
Hay, Henry

Hayes, J, W

HefFernan, Rev. T. J. ...
Higgins, R. M

Ingle, James

James, Wm.

Jennings, Sir Patrick . . .

Jessep, Thos., M.P.

Kearney, Simon ...

Kellett, W. F

Kennard, F. H

Kidd, John

Lane, Henry
Langwell, H. C. ...
Lee, John, junr. ..

Macdonnell, H. H.
Machattie, T. A., M B....
Machattie, G. E.
Mackay, J. A. K., M.P.
Mackenzie, A. J.
Mackenzie, D.
Macnamara, H., junr. ...
McGeoch, Robert

Glebe

Deniliqiiin

Gympie, Q.

Strathfield

Merew ether

Carcoar

Sydney

Adelaide, S.A.

Hobart, Tas.
Cootamundra

Sydney

Windsor
Bingara
Orange

Sydney

Cormack, Donald
Cowper, Chas.

Creer, N. Z

CuUen, W. P., M.A.

LL.D., M.L.C
Curnow, J. H.
Curry, A.

Dowell, Wm. S. .
Dowling, E.
Duffy, Hon. J. G.

Flood, Captain John
Foster, Frank J.
Fox, Frank
Freehill, F. B., M.A.

Lithgow Glover, George ...

Sydney Gorman, E. J.

Sydney Gosman, Professor
West Maitland

Warren
Warringah

Sydney
Corowa
Millthorpe
Mt. Victoria
Braidwood

Hills, Samuel
Hodge, W. F. ...
Hogg. H. R.,M.A.
Hood, J. T.
Howe, George
Hurley, W. F., M.P.
Hurst, Geo., M.B.

Sebastopol,Vic. Inglis, James

Eaglehawk,Vic. Jones, G. E. Russell

Sydney Jones, L. C. Russell
Sydney

Orange

Kite, Wm.

Mudgee

Kitt, Wm.

Wellington

Sydney

Luland, T. J.

Waratah

Lyne, W. J., M.P.

Bathurst

Cooma

Matthews, W. H.

Bathurst

Mawby, H.

Bathurst

Meagher, John . . .

Murrumburrah

Meagher, John P.

Sydney

Melville, Ninian ...

Young

Meeks, A. W. ...

Glebe

Millen, E. D., M.P.

Mulwala

Miller, John J. ...

Rookwood

Sydnej^

Waratah

Sydney
Bendigo
Merewether

Sydney
Sydney
Melbourne

Gj'mpie, Q.
Wattle Fiat
Sydney
Sydney

Aberdeen
Berrigan
Melbourne

Sydney
Hill End
Melbourne
Fitzroy, Vic.
Seymour, Vie.
Wattle Flat
Bathurst

Sydney

Petersham
Burwood

Kelso

War burton,
Vic.

Wellington
Sydney

Cootamundra.

Cowra

Bathurst

Wyalong West

Ashfield

Sydney

Bourke

Cootamundra

FEDERAL CONVENTIONS, CONFERENCES, Ac.

259

McKenzie, Hugh

Echuca- Muaraa

Mills, Henry

Balmain

McLaren, \Y.

Blayney

Milne, Alexander M.

Balmain

McLennan, Rev. D.

Berry

Moore, S. W., M.P. ...

Bingara

McXamara, W H.

S\'dney

Moran, His Eminence

Magney, Thos.

WooUahra

Cardinal

Sydney

Marriott, Very Rev.

Dean

Eathurst

Morris, Professor E. E. . . .

Melbourne

Martin, James ...

Sydney

Mailer, Narcisse

Dubbo

Matthews, H. C.

Bathurst

NicoU, B. B.

Sydney

Xorton, John

Sydney

Niven, \V. F.

Ballarat, Vic.

Oakes, Rev. G. S.

Kelso

O'Haran, Dr.

Sydney

O'Connor, Hon. D. , M. L. C.

Sydney

O'Mara, .John

Stockton

OConnor, Hon. R. E.,

M.L.C Sydney

ParnelL E. A. ...
Paul, W. H.
Peacock, R. W. ...
Pilcher, G. de V.

Quick, John, LL.D.

Kelso Pinkstone, Fred. ... Cootamundra

Bathurst Pryor, Benjamin... ... Greta

Perth, N.S.W. Purves, .L M., M.A. ... Sydney

Orange Pymont, Alfred Hill End

Bendigo

Rees, Evan

Stockton

Rodgers, .J. S. ...

. . . Newcastle

Reid, Hon. G. H.,

Rohner, Wm.

... Cobrara, Vic.

Premier, X.S.W. ...

Sydnej-

Rolin. Tom, M.A.

... Sydney

Reid, A. C

Cowra

Ross, S. A.

. . . Sj'dney

Renehan, J. T

Cootamundra

Russart, .Jacob ...

. . . Blajmey

Richardson, J. J.

Goulburn

Ryan, James

... Wodonga, Vic.

Robson, Thos

Merewether

See, John, M.P

Sydney

Smith, W. C. ..

. . . Auburn

Shackle, A.

Grenfell

Spears, J

... Granville

Sharpe, John

Sebastopol

Staflford, A.

... Manilla

Shute, Richard

Burwood

Stephen, Consett

Croydon

Simpson, Robert...

Merewether

Stephen, Wm.

. . . Sydney

Skelton. J. 0. M.

Sydney

Stewart. R. W. ...

... Hillston

Small. 0. W

Auburn

Stratton, J. T. ...

Cootamundra

Smith, Hon. Sydney, M.P.

Sydney

Struthers, James

. . . Warren

Smith, Thos

Newcastle

Suttor, Hon. F. B.

. . . Sydney

Taylor, J. W., M.A. ...

Forlies

Thiselton. R. G. ...

... Brighton, S.A.

Taylor, Rev. W. G., Pre-

Thomas, F. J. ...

... Glen Innes

sident Wesleyan Con-

Thompson, A. G....

. . . Bathurst

ference

Bathurst

Tovey, Rev. S. S., B.A. Sydney

Terry, E

Ryde

Turner, .John

... Prahran, Vic.

Upward, John

Ashfield

Wade, John

Sydney

West, John E. ...

. . . Sydney

Walker, Arthur

Paddington

West, T. .L

. . . Paddington

Walker, J. T

Sydney

Whitmee, S.

Millthorpe

Warren, W

Sydney

Wilkinson, R. B.

. . . Sydney

Webb, Rev. Arthur J. ...

Bathurst

Williams, E.

. . . Bathurst

260

LIST OF MEMBERS OF

Webb, Hon. Edmund,

M.L.C

Webb, N. A., LL.B. .

Weeden, John ...
West, John

Young, Rev. (Janon

Williamson, John

Bathurst Wilson, Charles G.

Port Augusta, Wilson, Edward...

S.A, Windsor, W. H....

Tumut Withers, J. W. ...

Sydney

Armidale

Corowa

Granville

Sydney

Shepparton,
Vic.

Perth, N.S.W.

Wittenoom, Hon. E. H. Perth, W.A.

STATUTORY FEDERAL CONVENTION, 1897-8.

OFFICERS :
President. — The Right Honourable Charles C. Kingston, P.C, Q.C, M.H.A.
Chaikman of Committee.— The Honourable Sir Richard C. Baker, K.C.M.G., M.L.C.
Leader. — The Honourable Edmund Barton, Q.C, M.L.C.

REPRESENTATIVES.

New South Wales.

The Honourable Richard Edward O'Connor,

M.L.C., Q.C.
The Honourable Sir Joseph Palmer Abbott,

K.C.M.G. (Speaker Legislative

Assembly).
James Thomas Walker, Esqiiire.
Bernhard Ringrose Wise, Esquire.

Edmund Barton, Esquire, M.L.C, Q.C.
The Right Honourable George Houstoun

Reid, P.C, M.L.A. (Premier).
The Honourable Joseph Hector Cairuthers,

M.L.A. (Secretary for Lands).
William McMillan, Esquire, M.L.A.
William John Lyne, Esquire, M.L.A.
The Honourable James Nixon Brunker,

M.L.A. (Colonial Secretary).

South Australia.
The Right Honourable Charles Cameron The Honourable John

Kingston, P.C, Q.C, M.H.A. (Premier)
The Honourable Frederick William Holder,

M.H.A. (Treasurer).
The Honourable John Alexander Cock burn,

M.D., M.H.A. (Minister of Education).
The Honourable Sir Richard Chaffey Baker,

K.C.M.G. (President of the Legislative

Council).

Hannah Gordon,

M.L.C.
Josiah Henrj' Symon, Esquire, Q C.
The Honourable Sir John William Downer,

Q.C, K.C.M.G., M.H.A.
Patrick McMahon Glynn, Esquire, B.A.,

LL.B.
The Honourable James Henderson Howe.
Vaiben Lewis Solomon, Esquire, M.H.A.

Tasmania.

The Honourable Sir Philip Oakley Fysh,

K.C.M.G.. M.H.A. (Treasurer).
The Right Honourable Sir Edward Nicholas

Coventry Braddon, P.O., K.C.M.G.,

M.H.A. (Premier).
The Honourable Henry Dobson, M.H.A.
The Honourable Neil Elliott Lewis, M.H.A.
The Honourable Nicholas John Brown,

M.H.A.

The Honourable Charles Henry Grant,

M.L.C.
The Honourable Adye Douglas (President

Legislative Council).
The Honourable William Moore, M.L.C.

(Chief Secretary).
Matthew John Clarke, Esquire, M.H.A.
The Honourable Jolm Henry, M.H.A.

FEDERAL CONVENTIONS, CONFERENCES, &c.

261

Victoria.

The Right Honourable Sir George Turner,
P.C, K.C.M.G., M.L.A. (Premier).

John Quick. Esquire, LL.D.

The Honourable Alfred Deakin, M.L.A.

The Honourable Alexander James Peacock,
M.L. A. (Chief Secretary).

The Honourable Isaac Alfred Isaacs,
M . L A. ( Attorney-G^eneral).

William Arthur Trenwith, Esquire, M.L.A.

"Western

The Right Honourable Sir John Forrest,
P.C, K.C.M.G., M.L.A. (Premier,
Colonial Secretary, and Colonial Trea-
surer).

The Honourable Sir James George Lee
Steere, Knight (Speaker l.iegislative
Assembly).

George Leake, Esquire, M.L.A.

The Honourable Frederick Henry Piesse,
M.L.A.' (Commissioner of Railways).

The Honourable John Winthrop Hackett,
M.L.C.

William Thorlej' Loton, Esquire, M.L. A.*

The Honourable Sir Graham Berry,

K.C.M.G. (Speaker Legislative

Assembl}').
The Honourable Simon Fraser, M.L.C.
The Honourable Sir William Austin Zeal,

K.C.M.G. f President Legislative

Council).
Henry Bournes Higgins, Esquire, M.L A.

Australia.
Walter Hartwell James, Esquire, M.L.A.
Albert Young Hassell, Esquire, M.L.A.
Robert Frederick ShoU, Esquire, M.L.A.*
The Honourable John Howard Taylor,

M.L.C.*
The Honourable Henry Briggs, M.L.C.t
The Honourable Frederick Thomas

Crowder. M.L.C.t
Tlie Honourable Andrew Harriot Henning,

M.L.C.t
The Honourable Harrj' Whittal Venn,

M.L.C.t

Resigned "ieth August, 189".

t From 26th August, 1897.

262 COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

THE

COMMONWEALTH OF AUSTRALIA
CONSTITUTION ACT.

63 & G4 VICT.
CHAPTER 12.

An Act to constitute the Commonwealth of Austraha.
..p. 1900. [9th July 1900.]

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland,
and Tasmania, humbly relying on the blessing of Almighty God, have agreed to
unite in one indissoluble Federal Commonwealth under the Crown of the United
Kingdom of Great Britain and Ireland, and under the Constitution hereby established :

And whereas it is expedient to provide for the admission into the Commonwealth
of other Australasian Colonies and possessions of the Queen :

Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows : —

t title. !• This Act may be cited as The Commonwealth of Australia Constitution Act.

;o extend to 2. The provisions of this Act referring to the Queen shall extend to Her Majesty's

»ssK)rs ^ heirs and successors in the sovereignty of the United Kingdom.

lamation of 3. It shall be lawful for the Queen, with the advice of the Privy Council, to declare

monwealth. ]jy proclamation that, on and after a day therein appointed, not being later than one
year after the passing of this Act, the people of New South Wales, Victoria, South
Australia, Queensland, and Tasmania, and also, if Her Majesty is satisfied that the
people of Western Australia have agreed thereto, of Western Australia, shall be united
in a Federal Commonwealth under the name of the Commonwealth of Australia.
But the Queen may, at any time after the proclamation, appoint a Governor-General for
the Commonwealth.

mencenient 4. The Commonwealth shall be established, and the Constitution of the Common-

wealth shall take efifect, on and after the day so appointed. But the Parliaments of the
several colonies may at any time after the passing of this Act make any such laws, to
come into operation on the day so appointed, as they might have made if the Ccmstitu-
tion had taken eflfect at the passing of this Act.
ation of the 5. This Act, and all laws made by the Parliament of the Commonwealth under the
laws. Constitution, shall be binding on the courts, judges, and people of every Stsite and

of every part of the Commonwealth, notwithstanding anything in the laws of any State ;
and the laws of the Commonwealth shall be in force on all British ships, the Queen's
ships of WHr excepted, whose first port of clearance and whose port of destination are in
the Commonwealth.

litions. 6. " The CommonweAlth " shall mean the Commonwealth of Australia as established

under this Act.

" The States " shall mean such of the colonies of New South Wales, New Zealand,
Queensland, Tasmania, Victoria, Western Australia, and South Australia, including the
northern territory of South Australia, as for the time being are parts of the Common-
wealth, and such colonies or territories as may be a<lmitted into or established by the
Commonwealth as States ; and each of such parts of the Commonwealth shall be called
•'a State."

Ch. 12.] CONSTITUTION ACT. 263

A.D. 1900.
" Original States " shall mean such States as are parts of the Commonwealth at its
establishment.

7. The Federal Council of Australasia Act, 1885, is hereby repealed, but so as not to Repeal of
atfect any laws passed by the Federal Council of Australasia and in force at the estab- _\ct.

lishment of the Commonwealth. *^^^ ♦» ""«'

c. 60.
Any such law may be repealed as to any State by the Parliament of the Common-
wealth, or as to any colony not being a State by the Parliament thereof.

8. After the passing of this Act the Colonial Boundaries Act, 1895, shall not apply Application ol
to any colony which becomes a State of the Commonwealth ; but the Commonwealth Boundaries Ac
shall be taken to be a self-governing colony for the purposes of that Act. 5S and 59 Vict

9. The Constitution of the Commonwealth shall be as follows : — Constitution.

THE CONSTITUTION.

This Constitution is divided as follows : —
CHAPTER I.— THE PARLIAMEXT :

Part I. — General :

Part II. — The Senate :

Part III. — The House of Representatives :

Part IV. — Both Houses of the Parliament :

Part V. — Powers of the Parliament :
CHAPTER II.— THE EXECUTIVE GOVERNMENT :
CHAPTER III.— THE JUDICATURE :
CH.\PTER IV —FINANCE AND TRADE :
CHAPTER v.— THE STATES:
CHAPTER VI.— NEW STATES:
CHAPTER VII.— MISCELLANEOUS :

CHAPTER VIII.— ALTERATION OF THE CONSTITUTION
THE SCHEDULE.

Chap. I.

CHAPTER I. tubParuamj

The Parliament. p^' i

GexKral.
Part I. — General.

1. The legislative power of the Commonwealth shall be vested in a Federal Parlia- Legislative
ment, which shall consist of the Queen, a Senate, and a House of Representatives, and power,
which is herein-after called "The Parliament," or "The Parliament of the Common-
wealth."

2. A Governor-General appointed by the Queen shall be Her Majesty's representa- Govemor-
tive in the Commonwealth, and shall have and may exercise in the Commonwealth cs^neral.
•during the Queen's pleasure, but subject to this Constitution, such powers and functions

of the Queen as Her Majesty may be pleased to assign to him.

3. There shall be pajable to the Queen out of the Consolidated Revenue fund of Salary of
the Commonwealth, for the salary of the Governor-General, an annual sum which, until Qg^l^i*"^"
the Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered during his continuance in
•office.

4. The provisions of this Constitution relating to the Governor-General extend and Provisions
apply to the Governor-General for the time being, or such person as the Queen may ^^]*grnor'*
appoint to administer the Government of the Commonwealth ; but no such person shall General
be entitled to receive any salary from the Commonwealth in respect of any other office

during his administration of the Government of the Commonwealth.

5. The Governor-General may appoint such times for holding the sessions of the Sessions of
Parliament as he thinks fit, and may also from time to time, by Proclamation or other- p^ol^tiona
^lae, prorogue the Parliament, and may in like manner dissolve the House of ^^5501= jj,,,,
itepresentatives.

264

COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

A.D. 1900.

Summoning^
Parliament.

First session.

Yearly session
of Parliament.

Part II.
The Senate.

Qualification of
electors.

Method of
election of
senators.

Times and
places.

Application of
State laws.

After anj' general election the Parliament shall be summoned to meet not later than
thirty daj's after the day appointed for the return of the writs.

The Parliament shall be summoned to meet not later than six months after the
establishment of the Commonwealth

6. There shall be a session of the Parliament once at least in every year, so that
twelve months shall not intervene between the last sitting of the Parliament in one
session and its first sitting in the next session.

Part II. — Thk Senate.

7. The Senate shall be composed of senators for each State, directly chosen by the
people of the State, voting, until the Parliament otherwise provides, as one electorate.

But until the Pai'liament of the Commonwealth otherwise provides, the Parliament
of the State of Queensland, if that State be an Original State, may make laws dividing
the State into divisions and determining the number of senators to be chosen for each
division, and in the absence of such provision the State shall be one electorate.

Until the Parliament otherwise provides there shall be six senators for each Original
State. The Parliament may make laws increasing or diminishing the number of senators
for each State, but so that equal representation of the several Original States shall be
maintained and that no Original State shall have less than six senators.

The senators shall be chosen for a term of six j-ears, and the names of the senators-
chosen for each State shall be certified by the Governor to the Governor-General.

8. The qualification of electors of senators shall be in each State that which is
prescribed by this Constitution, or by the Parliament, as the qualification for electors
of members of the House of Representatives ; but in the choosing of senators each
elector shall vote only once.

9. The Parliament of the Commonwealth may make laws prescribing the method of
choosing senators, but so that the method shall be uniform for all the States. Subject
to any such law, the Parliament of each State may make laws prescribing the method
of choosing the senators for that State.

The Parliament of a State may make laws for determining the times and places of
elections of senators for the State.

10. Until the Parliament otherwise provides, but subject to this Constitution, the
laws in force in each State, for the time being, relating to elections for the more
numerous House of the Parliament of the State shall, as nearly as practicable, apply to
elections of Senators for the State.

Failure to choose
senators.

Rotation of
senators.

11. The Senate maj' proceed to the despatch of business, notwithstanding the failure
of any State to provide for its representation in the Senate.

Issue of writs. 12. The Governor of any State may cause writs to be issued for elections of senators

for the State. In case of the dissolution of the Senate the writs shall be issued within
ten days from the proclamation of such dissolution.

13. As soon as may be after the Senate first meets, and after each first meeting of
the Senate following a dissolution thereof, the Senate shall divide the senators chosen
for each State into two classes, as nearly equal in number as practicable ; and the places
of the senators of the first class shall become vacant at the expiration of the third year,
and the places of tliose of the second class at the expiration of the sixth year, from the
beginning of their term of service ; and afterwards the places of senators shall become
vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made in the year at the expiration of
which the places are to become vacant.

For the purposes of this section the term of service of a senator shall be taken to
begin on the first day of January following the day of his election, except in the cases
of the first election and of the election next after any dissolution of the Senate, when it
shall be taken to begin on the first day of January preceding the day of his election.

14. Whenever the number of senators for a State is increased or dimini.shed, the
Parliament of the Commonwealth may make such provision for the vacating of the
places of senators for the State as it deems necessary to maintain regularitj' iu the
rotation.

15. If the place of a senator becomes vacant before the expiration of his term of
service, the Houses of Parliament of the State for which he was chosen shall, sitting
and voting together, choose a penson to hold the place until the expiration of the term,
or until the election of a successor as hereinafter provided, whichever first happens.

Further
provision for
rotation.

Casual
vacancies.

A.D. 1900.

Ch. 12] CONSTITUTION ACT. 265

But if the Houses of Parliament of the Stat« are not in session at the time when the
vacancy is notifie<l, the Governor of the State, with the advice of the Executive Council
thereof, may appoint a person to hold the place until the expiration of fourteen days
after the beginning of the next session of the Parliament of the State, or until the
election of a successor, whichever first happens.

At the next general election of members of the House of Representatives, or at the
next election of senators for ihe State, whichever first happens, a successor shall, if the
term has not then expired, be chosen to hold the place from the date of his election
until the expiration of the term.

The name of any senator so chosen or appointed shall be certified by the Governor
of the State to the Governor-General.

16. The qualifications of a senator shall be the same as those of a member of the Qualifications of
House of Representatives. senator.

17. The Senate shall, before proceeding to the despatch of any other business. Election of
choose a senator to be the President of the Senate ; and as often as the office of President President,
becomes vacant the Senate shall again choose a senator to be the President.

The President shall cease to hold his office if he ceases to be a senator. He may be
removed from office by a vote of the Senate, or he may resign his office or his seat by
writing addressed to the Governor-General.

18. Before or during any absence of the President, the Senate may choose a senator Absence of
to perform his duties in his absence. Resident.

19. A senator may, by writing addressed to the President, or to the Governor- Resignation of
General if there is no President or if the President is absent from the Commonwealth, senator,
resign his place, which thereupon shall become vacant.

20. The place of a senator shall become vacant if for two consecutive months of any Vacancy by
session of the Parliament he, without the permission of the Senate, fails to attend the absence.
Senate.

2 1 . Whenever a vacancy happens in the Senate, the President, or if there is no vacancy to be
President or if the President is absent from the Commonwealth the Governor-General, notified,
shall notifj- the same to the Governor of the State in the representation of which the

vacancy has happened.

22. Until the Parliament otherwise provides, the presence of at least one-third of Quorum,
the whole number of the senators shall be necessary to constitute a meeting of the
Senate for the exercise of its powers.

23. Questions arismg in the Senate shall be determined by a majority of votes, and Voting in
each senator shall have one vote. The President shall in all cases be entitled to a vote ; Senate,
and when the votes are equal the question shall pass in the negative.

Part III. — Thk House of Rkpresestatives.

Part III.
HorsE OP Rbpre-

8KSTATIVBS.

24. The House of Representatives shall be composed of members directly chosen Constitution of
by the people of the Commonwealth, and the number of such members shall be, as House of Repre-
nearly as practicable, twice the number of the senators. sentatives.

The number of members chosen in the several States shall be in proportion to the
respective numbers of their people, and shall, until the Parliament otherwise provides,
be determined, whenever necessary, in the following manner : —

(i.) A quota shall be ascertained by dividing the numljer of the people of the
Commonwealth, as shown by the latest statistics of the Commonwealth,
by twice the number of the senators :
(ii.) The number of members to be chosen in each State shall be determined by
di\iding the number of the people of the State, as shown by the latest
statistics of the Commonwealth, by the quota ; and if on such division
there is a remainder greater than one-half of the quota, one more member
shall be chosen in the State.
But notwithstanding anything in this section, five members at least shall be chosen
in each Original State.

25. For the purposes of the last section, if by the law of anj' State all peraons of Provision as to
Miy race are disqualified from voting at elections for the more numerous House of the races disqualified
Parliament of the State, then, in reckoning the number of the people of the State or of ^^°^ voting.
the Commonwealth, persons of that race resident in that State shall not be counted.

266

COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

A.D. 1900.

Representatives 26. Notwithstamling anything in section twenty-four, the number of members to be

in first Parlia- chosen in each State at the first election shall be as follows : —

ment.

New South Wales ... ... ... ... twenty-three;

Victoria ... ... ... .. ... ... twenty;

Queensland ... ... ... .. ... eight;

South Australia ... ... ... ... ... six;

Tasmania... ... ... .. ... ... five;

Provided that if Western Australia is an Original State, the numbers shall be as
follows : —

New South Wales
Victoria ...
Queensland

South Australia ...
Western Australia
Tasmania ...

twenty-six ;
twentj^-three ;
nine ;
seven ;
five ;
five.

Alteration of
number of
members.
Duration of

Qualification of
electors.

Application of
State laws.

27 Subject to this Constitution, the Parliament may make laws for increasing or
diminishing the number of the members of the House of Representatives.

28. Every House of Representatives shall continue for three years from the first
sentatives^^^*^^' ™66ting of the House, and no longer, but may be sooner dissolved by the Governor-
General.

Electoral 29. Until the Parliament of the Commonwealth otherwise provides, the Parliament

divisions. of any State may make laws for determining the divisions in each State for which

members of the House of Representatives may be chosen, and the number of members

to be chosen for each division. A division shall not be formed out of parts of different

States.

In the absence of other provision, each State shall be one electorate.

30. Until the Parliament otherwi.se provides, the qualification of electors of
members of the House of Representatives shall be in each State that which is prescribed
by the law of the State as the qualification of electors of the more numerous House of
Parliament of the State ; but in the choosing of members each elector shall vote
only once.

31. Until the Parliament otherwise provides, but subject to this Constitution, the
laws in force in each State for the time being relating to elections for the more numerous
House of the Parliament of the State shall, as nearly as practicable, apply to elections
in the State of members of the House of Representatives.

Writs for general 32 The Governor-General in Council may cause writs to be issued for general

election. elections of members of the House of Representatives.

After the first general election, the writs shall be issued within ten days from the

expiry of a House of Representatives or from the proclamation of a dissolution

thereof.

33. Whenever a vacancy happens in the House of Representatives, the Speaker
shall issue his writ for the election of a new member, or if there is no Speaker or if he
is absent from the Commonwealth the Governor-General in Council may issue
the writ.

34. Until the Parliament otherwise provides, the qualifications of a member of the
House of Representatives shall be as follows : —

(i.) He must be of the full age of twenty-one years, and must be an elector
entitled to vote at the election of members of the House of Representa-
tives, or a person qualified to become such elector, and must have been
for three years at the least a resident within the limits of the Common-
wealth as existing at the time when he is chosen :
(ii.) He must be a subject of the Queen, either natural-born or for at least five
years naturalized under a law of the United Kingdom, or of a Colony
which has become or becomes a State, or of the Commonwealth, or of a
State.

35. The House of Representatives shall, before proceeding to the despatch of any
other business, choose a member to be the Speaker of the House, and as often as the
office of Speaker becomes vacant the House shall again choose a member to be the
Speaker.

The Speaker shall cease to hold his office if he ceases to be a member. He may be
removed from office by a vote of the House, or he may resign his office or his seat by
writing addressed to the Governor-General.

Writs for
vacancie.s.

Qualifications of
ntembers.

Election of
Speaker.

Ch. 12.] CONSTITUTION ACT. 267

""^ A.D. 1900.

3i). Before or during any absence of tlie Speaker, the House of Representatives Absence of
niav choose a member to perform his duties in his absence. Speaker.

37. A member may by writing addressed to the Speaker, or to the Governor- Resigmation of
General if there is no 'Speaker or if the Speaker is absent from the Commonwealth, member,
resign his place, which thereupon shall become vacant.

38. The place of a member shall become vacant if for two consecutive months of ^^^^^y ^y
anv session of the Parliament he, without the permission of the House, fails to attend *"^"^^-
the House.

39. Until the Parliament otherwise provides, the presence of at least one-third of Quorum,
the whole number of the members of the House of Representatives shall be necessary

to constitute a meeting of the House for the exercise of its powers.

40. Questions arising in the House of Representatives shall be determined by a Voting in House
majority of votes other than that of the Speaker. The Speaker shall not vote unless the j^j^gP""^^"'
numbers are equal, and then he shall have a casting vote.

Part IV.

Part IV. -Both Houses of the Parliament. t^p^uSt,

41. No adult person who has or acquires a right to vote at elections for the more Ri<;ht of electors
numerous House of the Parliament of a State shall, while the right continues, be of States,
prevented by any law of the Commonwealth from voting at elections for either House of

the Parliament of the Commonwealth

42. Every senator and ever}' member of the House of Representatives shall before Oath or
taking his seat make and subscribe before the Governor-General, or some person attirmation of
authorised by him, an oath or affirmation of allegiance in the form set forth in the'^ e^ance.
schedule to this Constitution.

43. A member of either House of the Parliament shall be incapable of being chosen Member of one
or of sitting as a member of the other House. House ineligible

° for other.

44. Any person who — Disqualification.

(i. ) Is under any acknowledgment of allegiance, obedience, or adherence to a
foreign power, or is a subject or a citizen or entitled to the rights or
privileges of a subject or a citizen of a foreign power : or
(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject
to be sentenced, for an}' offence punishable under the law of the
Commonwealth or of a State bj' imprisonment for one year or longer : or
(iii. ) Is an undischarged bankrupt or insolvent : or

(iv. ) Holds any office of profit under the Crown, or any pension payable during the
pleasure of tlie Crown out of any of the revenues of the Commonwealth :
or
(v.) Has an\' direct or indirect pecuniary interest in any agreement with the
Public Service of the Commonwealth otherwise than as a member and in
common witii the other members of an incorporated company consisting
of more than twenty-five persons :
shall be incapable of being chosen or of sitting as a senator or a member of the House
of Representatives.

But sub-section iv. does not apply to the office of any of the Queen's Ministers of
State for the Commonwealth, or of any of the Queen's Ministers for a State, or to the
receipt of pay, half pay, or a pension by any person as an officer or member of the
Queen's navy or army, or to the receipt of pay as an officer or member of the naval or
military forces of the Commonwealth by any person whose services are not wholly
employed by the Commonwealth.

45. If a senator or member of the House of Representatives — Vacancy on

happening of
(i.) Becomes subject to any of the disabilities mentioned in the last preceding disqualification

section : or
(ii.) Takes the benefit, whether by a.ssignment, composition, or otherwise, of any

law relating to bankrupt or insolvent debtors : or
(iii.) Directly or indirectly takes or agrees to take any fee or honorarium for
services rendered to the Commonwealth, or for ser\*ices rendered in the
Parliament to any person or btate :
his place shall thereupon become vacant.

268

COMMONWEALTH OF AUSTRALIA [63 & «4 Vict.

A.D. 1900.

Penalty for
sitting when
disqualified.

Disputed

elections.

Allowance to
members.

Privileges, &c.
of Houses.

Rules and
orders.

46. Until the Parliament otlierwise provides, any person declared by this Constitu-
tion to be incapable of sitting as a senator or as a member of the House of Representa-
tives shall, for every day on wliich he so sits, be liable to pay the sum of one hundred
pounds to any person who sues for it in any court of competent jurisdiction.

47. Until the Parliament otherwise provides, any question respecting the qualifica-
tion of a senator or of a member of the House of Representatives, or respecting a vacancy
in either House of the Parliament, and any question of a disputed election to either
House, shall be determined by the House in which the question arises.

48. Until the Parliament otherwise provides, each senator and each member of the
House of Representatives shall x'eceive an allowance of four hundred pounds a year, to
be reckoned from the day on which he takes his seat.

49. The powers, privileges, and immunities of the Senate and of the House of
Representatives, and of the members and the committees of each House, shall be such
as are declared by the Parliament, and until declared shall be those of the Commons
House of Parliament of the United Kingdom, and of its members and committees, at the
establishment of the Commonwealth.

50. Each House of the Parliament may make rules and orders with respect to —

(i.) The mode in which its powers, privileges, and immunities may be exercised
and upheld :

(ii. ) The order and conduct of its business and proceedings either separately or
jointly with the other House.

Part V.

Powers of thr

Parliambnt.

Part V.— Powers of the Parliament,

Legislative 51. The Parliament shall, subject to this Constitution, have power to make laws for

powers of the ^j^g peace, order, and good government of the Commonwealth, with respect to : —

(i. ) Trade and commerce with other countries, and among the States :

(ii. ) Taxation ; but so as not to discriminate between States or parts of States :

(iii.) Bounties on the production or export of goods, but so that such bounties
shall be uniform throughout the Commonwealth :

(iv. ) Borrowing money on the public credit of the Commonwealth :

(v.) Postal, telegraphic, telephonic, and other like services :

(vi. ) The naval and military defence of the Commonwealth and of the several
States, and the control of the forces to execute and maintain the laws of
the Commonwealth :

(vii. ) Lighthouses, lightships, beacons and buoys :

(viii. ) Astronomical and meteorological observations :

(ix.) Quarantine :

(x.) Fisheries in Australian waters beyond territorial limits :

(xi.) Census and statistics :

(xii.) Currency, coinage, and legal tender :

(xiii.) Banking, other than State banking; also State banking extending bej'ond
the limits of the State concerned, the incorporation of banks, and the
issue of paper money :

(xiv.) Insurance, other than State insurance ; also State insurance extending
beyond the limits of the State concerned :

(xv.) Weights and measures :

(xvi. ) Bills of exchange and promissory notes :

(xvii.) Bankruptcy and insolvency :

(xviii.) Copyrights, patents of inventions and designs, and trade marks :

(xix. ) Naturalization and aliens :

(xx.) Foreign corporations, and trading or financial corporations formed within
the limits of the Commonwealth :

Ch. 12.]

CONSTITUTION ACT. 269

A.D. 1900.

(xxi.) Marriage:

(xxii.) Divorce and uiatrinionial causes; and in relation thereto, parental rights,
and the custody and guardianship of infants :

(xxiii.) Invalid acd old-age pensions :

(xxiv. ) The service and execution throughout the Commonwrealth of the civil and
criminal process and the judguients of the courts of the States :

(xxv.) The recognition thi'oughout the Commonwealth of the laws, the public Acts
and records, and the judicial proceedings of the States :

(xxvi.) The people of any race, other than the aboriginal race in any State, for
whom it is deeme<l necessary to make special laws :

(xxvii.) Immigration and emigration :

(xxviii.) The influx of criminals :

(xxix. ) External affairs :

(xxx.) The relations of the Commonwealth with the islands of the Pacific :

(xxxi.) The acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make laws :

(xxxii.) The control of railways with respect to transport for the naval and military
purposes of the Commonwealth :

ixxxiii. ) The acquisition, with the consent of a State, of any railways of the State on
terms arranged Ijetween the Commonwealth and the State :

(xxxiv.) Railway construction and extension in any State with the consent of that
Sta'te :

(xxxv. ) Conciliation and arbitration for the prevention and settlement of industrial
disputes extending beyond the limits of any one State :

(xxxvi.) Matters in respect of which this Constitution makes provision until the
Parliament otherwise provides :

(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament
or Parliaments of any State or States, but so that the law shall extend
only to States by whose Parliaments the matter is referred, or which
afterwards adopt the law :

(Kxxviii.) The exercise within the Commonwealth, at the request or with the concur-
rence of the Parliaments of all the States directly concerned, of any
power which can at the establishment ot this Constitution be exercised
only by the Parliament of the United Kingdom or by the Federal
Council of Australasia :

(xxxix.) ilatters incidental to tlie execution of any power vested by this Constitution
in the Parliament or in either House tliereof, or in the Government of
the Commonwealth, or in the Federal Judicature, or in any department
or officer of the Commonwealth.

52. The Parliament shall, subject to this Constitution, have exclusive power to Exclusive
make laws for the peace, order, and good government of the Conmionwealth with powers of the
respect to— Parliainent

(i.) The seat of government of the Commonwealth, and all places acquired by

the Commonwealth for public purposes :
(ii ) Matters relating to any department of the public service the control of

which is by this Constitution transferred to the Executive Government

of the Commonwealth :
(iii ) Other matters declared by this Constitution to be within the exclusive power

of the Parliament.

5.3. Proposed laws appropriating revenue or moneys, or imposing taxation, shall Powers of the
not originate in the Senate. But a proposed law sha'll not be taken to appropriate J^^l^ '°j
revenue or moneys, or to impose taxation, by reason only of its containing provisions legislation,
for the imposition or appropriation of fines or other pecuniary penalties, or for the
demand or pajment or appropriation of fees for licences, or fees for services under the
proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws
appropriating revenue or moneys for the ordinary annual services of the Government.

270

COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

A.D. 1900.

Appropriation
Bills.

Tax Bills.

Recommenda-
tion of money
votes.

Disagrreement
between the
Houses.

Royal assent to
Bills.

Recommen-
dations by
Governor-
General.

Disallowance by
the Queen.

Sig^nification of
Queen's pleasure
on Bills reserved.

The Senate may not amend any proposed law so as to increase any proposed charge
or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed
law which the Senate may not amend, requesting, by message, the omission or amend-
ment of any items or provisions therein. And the House of Representatives may, if it
tliinks lit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the
House of Representatives in respect of all proposed laws.

54. The proposed law which appropriates revenue or moneys for the ordinary
annual services of the Government shall deal only with such appropriation.

55 Laws imposing taxation shall deal only with the imposition of taxation, and
any provision therein dealing with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of customs or of excise, shall
deal with one subject of taxation only ; but laws imposing duties of customs shall deal
with duties of customs only, and law s imposing duties of excise shall deal with duties
of excise only.

56. A vote, resolution, or proposed law for the appropriation of revenue or moneys
shall not be passed unless the purpose of the appropriation has in the same session been
reconmiended by message of the Governor-General to the House in which the proposal
originated.

57. If the House of Representatives passes any proposed law, and the Senate
rejects or fails to pass it, or passes it with amendments to which the House of Repre-
sentatives will not agree, and if after an interval of three months the House of
Repi-esentatives, in the same or the next session, again passes the proposed law witli or
without any amendments which have been made, suggested, or agreed to by the Senate,
and the Senate rejects or fails to pass it, or passes it with amendments to which the
House of Representatives Avill not agree, the (Governor-General may dissolve the Senate
and the House of Representatives simultaneously. But such dissolution shall not take
place witliin six months before the date of the expiry of the House of Representatives
by effluxion of time.

If after such dissolution the House of Representatives again passes the proposed
law, with or without any amendments which have been made, suggested, or agreed to b\'
the Senate, and the Senate rejects or fails to pass it, or pas.ses it with amendments
to which the House of Representatives will not agree, the Governor-General may
convene a joint sitting of the members of the Senate and of the House of Repre-
sentatives.

The members present at the joint sitting maj- deliberate and shall vote together
upon the proposed law as last proposed by the House of Representatives, and upon
amendments, if any, which have been made therein by one House and not agreed to by
the other, and any such amendments which are affirmed by an absolute majority of the
total number of the members of the Senate and House of Representatives shall be taken
to have been carried, and if the proposed law, with the amendments, if any, so carried
is affirmed by an absolute majority of the total number of the members of the Senate
and House of Representatives, it shall be taken to have been duly passed by both
Houses of the Parliament, and shall be presented to the Governor-General for the
Queen's assent.

58. When a proposed law passed by botli Houses of the Parliament is presented to
the Governor-General for the Queen's assent, he shall declare, according to his discretion*
but subject to this Constitution, that he assents in the Queen's name, or that he with-
holds assent, or that he reserves the law for the Queen's pleasure.

The Governor-General may return to the House in which it originated any proposed
law so presented to iiim, and may transmit therewith any amendments which he may
recommend, and the Houses may deal with the recommendation.

59. The Queen may disallow any law within one year from the Governor-General's
assent, and .such disallowance on being made known by the Governor- General by speech
or message to each of the Houses of the Parliament, or by Proclamation, shall annul the
law from the day when the disallowance is so made known.

60. A proposed law reserved for the Queen's pleasure shall not have any force unless
and until within two years from the day on which it was presented to the Governor-
General for the Queen's assent the Governor-General makes known, by speech or
message to each of the Houses of the Parliament, or bj' Proclamation, that ic lias
received the Queen's assent.

Ch. 12.] CONSTITUTION ACT. 271

~ A.D 1900.

CHAPTER II.

Chap. II.

The Executive Governnient. govkInmb.nt.

Gl. The executive power of the Commonwealth is vested in the Queen and is Executive
exerciseable In* the Ooveruor-General as the Queen's representative, and extends to the power,
execution and maintenance of this Constitution, and of the laws of the Commonwealth.

62. There shall be a Federal Executive Council to advise the Governor-General in Federal
the government of the Commonwealth, and the members of the Council shall be chosen Executive
and summoned by the Governor-General and sworn as Executive Councillors, and shall ""
hold office during his pleasure.

63. The provisions of this Constitution referring to the Governor-General in Council Provisions
shall be construed as referring to the Governor-General acting with the ad\ice of the '^^""nncr to
Federal Executive Council. General.

64. The Governor-General may appoint officers to administer such departments of Ministers of
State of the Commonwealth as the Governor-General in Council may establish. State.

Such officers shall hold office during the pleasure of the Governor-General. Thej-
shall be members of the Federal Executive Council, and shall be the Queen's Ministers
of State for the Commonwealth.

After the iirst general election no Minister of State shall hold office for a longer Ministers to sit
period than three months unless he is or becomes a senator or a member of the House of i" Parliament
Representatives.

65. Until the Parliament otherwise provides, the Ministers of State shall not exceed Number of
seven in number, and shall hold such offices as the Parliament prescribes, or, in the Ministers,
absence of provision, as the Governor-General directs.

66. There shall be payable to the Queen, out of the Consolidated Revenue Fund of ^^"?^^°'
the Commonwealth, for the salaries of the Ministers of State, an annual sum which, ^i"*®''*'^-
until the Parliament otherwise provides, shall not exceed twelve tliousaud pounds a

year.

67. Until the Parliament otherwise pro^^des, the appointment and removal of all Appointment of
other officers of the Executive (lovernment of the Commonwealth shall be vested in the*^'^** servants.
Governor-General in Council, unless the appointment is delegated by the Governor-
General in Council or by a law of the Commonwealth to some other authority.

68. The command in chief of the naval and military forces of the Commonwealth is Command of
vested in the Governor-General as the Queen's representative. naval and

militar>- forces.

69. On a date or dates to be proclaimed by the Governor-General after the estab- Transfer of
lishment of the Commonwealth the following departments of the public service in each certain depart-
State shall become transferred to the Commonwealth : — ments.

Posts, telegraphs, and telephones :

Xaval and military defence :

Lighthouses, lightships, beacons, and buoys :

Quarantine.

But the departments of customs and of excise in each State shall become transferred
to the Commonwealth on its establishment.

70. In respect of matters which, under this Constitution, pa.'ss to the Executive Certain powers
Government of the Commonwealth, all powers and functions which at the establishment **' ®?^'^"°'^ ^**
of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a General "°*"^
Colony with the advice of his Executive Council, or in any authority of a Colony, shall

vest in the Governor-General, or in the Governor-General in Council, or in the authority
exercising similar powers under the Commonwealth, as the case requires.

272

A.D. 1900.

COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

Chap. III.
The Judicature.

CHAPTER III.

The Judicature.

Judicial power
and Courts.

Judges'
appointment,
tenure, and
remuneration.

Appellate
jurisdiction of
High Court.

Appeal to
Queen in
Council.

Original
jurisdiction of
High Court

71. The judicial power of the Commonwealth shall be vested in a Federal Supreme
Court, to be called the High Court of Australia, and in such other federal courts as the
Parliament creates, and in such other courts as it invests with federal jurisdiction. The
High Court shall consist of a Chief Justice, and so many other Justices, not less than
two, as the Parliament prescribes.

72. The Justices of the High Court and of the other courts created by the
Parliament —

(i. ) Shall be appointed by the Governor-General in Council :

(ii.) Shall not be removed except by the Governor-General in Council, on an

address from both Houses of the Parliament in the same session, praying

for such removal on the ground of proved misbehaviour or incapacity :

(iii.) Shall receive such remuneration as the Parliament may fix ; but the

remuneration shall not be diminished during their continuance in office.

73. The High Court shall liave jurisdiction, with such exceptions and subject to
such regulations as the Parliament presci'ibes, to hear and determine appeals from all
judgments, decrees, orders, and sentences —

(i.) Of an J' Justice or Justices exercising the original jurisdiction of the High

Court :
(ii.) Of any other federal court, or court exercising federal jurisdiction ; or of the
Supreme Court of any State, or of any other court of any State from
which at the establishment of the Commonwealth an appeal lies to the
Queen in Council :
(iii.) Of the Inter-State Commission, but as to questions of law onlj- :
and the judgment of the High Court in all such cases shall be final and conclusive!

But no exception or I'egulation prescribed by the Parliament shall prevent the High
Court from hearing and determining any appeal from the Supreme Court of a State in
any matter in which at tlie establishment of the Commonwealth an appeal lies from such
Supreme Court to the Queen in Council.

Until the Parliament otherwise provides, the conditions of and restrictions on
appeals to the Queen in Council from the Supreme Courts of the several States shall be
applicable to appeals from them to the High Court.

74 No appeal shall be permitted to the Queen in Council from a decision of the
High Court upon any question, howsoever arising, as to the limits inter se of the Consti-
tutional powers of the Commonwealth and those of any State or States, or as to the
limits inter se of the Constitutional powers of any two or more States, unless the High
Court shall certify that tlie question is one which ought to be determined by Her Majesty
in Council.

'J"he High Court may so certify if satisfied that for any special reason the certifi-
cate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on
the question without further leave.

Except as provided in this section, this Constitution shall not impair any right
which the Queen may be pleased to exercise by virtue of Her Royal prerogative to
grant special leave of appeal from the High Court to Her Majesty in Council. The Par-
liament may make laws limiting the matters in which such leave maj' be asked, but
proposed laws containing any such limitation shall be reserved by the Governor-General
for Her Majesty's pleasure.

75. In all matters —

(i.) Arising under any treaty :

(ii. ) Affecting consuls or other representatives of other countries :
(iii.) In which the Commonwealth, or a person suing or being sued on behalf of the

Commonwealth, is a party :
(iv.) Between States, or between residents of different States, or between a State

and a resident of another State :
(v.) lu which a writ of Mandamus or prohibition or an injunction is sought against
an officer of the Commonwealth :
the High Court shall have original jurisdiction

Ch. 12.] CONSTITUTIOX ACT. 273

A.D. 1900.

76. The Parliament may make laws conferring original jurisdiction on the High Additional
Court in any matter- ^a^ction.

(i.) Arising under this Constitution, or involving its interpretation :

(ii. ) Arising under any laws made by the Parliament :

(iii. ) Of Admiralty and maritime jurisdiction :

(iv.) Relating to the same subject-matter claimed under the laws of different
States.

77. With respect to anv of the matters mentioned in the last two sections the Power to define
Parliament may make laws— jurisdiction.

(i. ) Defining the jurisdiction of any federal court other than the High Court :

(ii.) Defining the extent to which the jurisdiction of any federal court shall be
exclusive of that which belongs to or is invested in the courts of the
States :

(iii ) Investing any court of a State with federal jurisdiction.

78. The Parliament may make laws conferring rights to proceed against the Proceedings

Commonwealth or a State in respect of matters within the limits of the judicial power, apmst

•"^ ' •^ Commonwealth

79. The federal jurisdiction of any court may be exercised by such number of judges ^J ^^f^-
3s the Parliament prescribes. judges.' °

80. The trial on indictment of any offence against anj' law of the Commonwealth Trial ^y jwy.
shall be by jury, and every such trial shall be held in the State where the offence was
committed, and if the offence was not committed within any State the trial shall be

held at such place or places as the Parliament prescribes.

CHAPTER lY. en.P,v

FiSAXCB .\SD

Finance and Trade. trade.

81. All revenues or moneys raised or received by the Executive Government of the Consolidate<l
Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the Revenue FniuU
purposes of the Commonwealth in the manner and subject to the charges and liabilities

imposed by this Constitution.

82. The costs, charges, and expenses incident to the collection, management, and E.xpenditure
receipt of the Consolidated Revenue Fund shall form the first charge thereon ; and the charged thereon,
revenue of the Commonwealth shall in the first instance be applied to the payment of

the expenditure of the Commonwealth.

83. No money shall be drawn from the Treasury of the Commonwealth except Money to be
nnder appropriation made by law. appropriated by

But until the expiration of one month after the first meeting of the Parliament the
Governor-General in Council may draw from the Treasury and expend such moneys as
may be necessary for the maintenance of anj' department transferred to the Common-
wealth and for the holding of the first elections for the Parliament.

84. When any department of the public serrice of a State becomes transferred to Transfer of
the Commonwealth, all officers of the department shall become subject to the control of officers
the Executive Government of the Commonwealth.

Any such officer who is not retained in the service of the Commonwealth shall,
unless he is appointed to some other office of equal emolument in the public service of
the State, be entitled to receive from the State any pension, gratuity, or other compen-
aation, payable under the law of the State on the abolition of his office.

Any such officer who is retained in the service of the Commonwealth shall preserve
all his existing and accruing rights, and shall be entitled to retire from office at the time,
and on the pension or retiring allowance, which would be permitted by the law of the
State if his service with the Commonwealth were a continuation of his service with the
State. Such pension or retiring allowance shall be paid to him by the Commonwealth ;
but the State shall pay to the Commonwealth a part thereof, to be calculated on the
proportion which his term of service with the State bears to his whole term of service,
•and for the purpose of the calculation his salary shall be taken to be that paid to him by
the State at the time of the transfer.
18

A.D. 1900.

274 COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

Any officer who is, at the establishment of the Commonwealth, in the public service
of a State, and who is, by consent of the Governor of the State with the advice of the
Executive Council thereof, transferred to the public service of the Commonwealth,
shall have the same rights as if he had been an officer of a department transferred to the
Commonwealth and were retained in the service of the Commonwealth.

Transfer of 85. When any department of the public service of a State is transferred to the

property of Commonwealth-

(i.) All property of the State of any kind, used exclusively in connexion with
the department, shall become vested in the Commonwealth ; but, in the
case of the departments controlling customs and excise and bounties, for
such time only as the Governor-General in Council may declare to be
necessary :

(ii.) The Commonwealth may acquire any property of the State, of any kind
used, but not exclusively used in connexion with the department ; the
value thereof shall, if no agreement can be made, be ascertained in, as
nearly as may be, the manner in which the value of land, or of an interest
in land, taken by the State for public purposes is ascertained under the
law of the State in force at the establishment of the Commonwealth :

(iii.) The Commonwealth shall compensate the State for the value of any property
passing to the Commonwealth under this section : if no agreement can
be made as to the mode of compensation, it shall be determined under
laws to be made by the Parliament:

(iv. ) The Commonwealth shall, at the date of the transfer, assume the current
obligations of the State in respect of the department transferred.

86. On the establishment of the Commonwealth, the collection and control of duties
of customs and of excise, and the control of the payment of bounties, shall pass to the
Executive Government of the Commonwealth.

87. During a period of ten years after the establishment of the Commonwealth
and thereafter until the Parliament otherwise provides, of the net revenue of the
Commonwealth from duties of customs and of excise not more than one-fourth shall
be applied annually by the Commonwealth towards its expenditure.

The balance shall, in accordance with this Constitution, be paid to the several
States, or applied towards the payment of interest on debts of the several States
taken over by the Commonwealth.

Uniform duties 88. Uniform duties of customs shall be imposed within two years after the estab-

of customs. lishment of the Commonwealth.

Payment to 89. Until the imposition of uniform duties of customs —

States before

uniform duties. (i.) The Commonwealth shall credit to each State the revenues collected therein

by the Commonwealth.

(ii.) The Commonwealth shall debit to each State —

(a) the expenditure therein of the Commonwealth incurred solely
for the maintenance or continuance, as at the time of transfer,
of any department transferred from the State to the Common-
wealth ;

(b) the proportion of the State, according to the number of its
people, in the other expenditure of the Commonwealth.

(iii.) The Commonwealth shall pay to each State month by month the balance (if
any) in favour of the State.

Exclusive power 90. On the imposition of imiform duties of customs the power of the Parliament

over customs, to impose duties of customs and of excise, and to grant bounties on the production or
?)ounties"'^ export of goods, shall become exclusive.

On the imposition of uniform duties of customs all laws of the several States
imposing duties of customs or of excise, or oflFering bounties on the production or export
of goods, shall cease to have effect, but any grant of or agreement for any such bounty
lawfully made by or under the authority of the Government of any State shall be taken
to be good if made before the thirtieth day of June, one thousand eight hundred and
ninety-eight, and not otherwise.

Exceptions as to ^^- Nothing in this Constitution prohibits a State from granting any aid to or

bounties. bounty on mining for gold, silver, or other metals, nor from granting, with the consent

of both Houses of the Parliament of the Commonwealth expressed by resolution, any

aid to or bounty on the production or export of goods.

Ch. 12.] CONSTITUTION ACT. 275

■ A.D. IflOO,

92. On the imposition of uniform duties of customs, trade, commerce, aud inter- Trade within the
course among the States, whether by means of internal carriage or ocean navigation. Commonwealth
shaU be absolutely free. '" ^ "'^^■

But notwithstanding anything in this Constitution, goods imported before the
imposition of uniform duties of customs into any State, or into any Colony which,
whilst the goods remain therein, becomes a State, shall, on thence passing into another
State within two years after the imposition of such duties, be liable to any duty
chargeable on the importation of such goods into the Commonwealth, less any duty paid
in respect of the goods on their importation.

93. During the first five years after the imposition of uniform duties of customs, Pa^Tiieut to
aud thereafter until the Parliament otherwise provides — veai?after ^^

(i.) The duties of customs chargeable on goods imported into a State and after- uniform tariffs,
wards passing into another State for consumption, and the duties of
excise paid on goods produced or manufactured in a State and afterwards
passing into another State for consumption, shall be taken to have been
collected not in the former but in the latter State :
(ii.) Subject to the last subsection, the Commonwealth shall credit revenue, debit
expenditure, and pay balances to the several States as prescriljed for the
period preceding the imposition of uniform duties of customs.

94. After five years from the imposition of uniform duties of customs, the Parlia- Distribution ot
nient may provide, on such basis as it deems fair, for the mouthly payment to the surplus,
several States of all surplus revenue of the Commonwealth.

95. Notwithstanding anything in this Constitution, the Parliament of the State of Customs duties
Western Australia, if that State be an Original State, may, during the first five years °f ^^estern
after the imposition of uniform duties of customs, impose duties of customs on goods "^ '"'
passing into that State and not originally imported from beyond the limits of the
Commonwealth ; and such duties shall be collected by the Commonwealth.

But any duty so imposed on any goods shall not exceeil during the first of such
years the duty chargeable on the goods under the law of Western Australia in force at
the imposition of imiform duties, and shall not exceed during the second, third, fourth,
and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of
such latter duty, and all duties imposed under this section shall cease at the expiration
of the fifth year after the imposition of uniform duties.

If at any time during the five years the duty on any goods under this section is
higher than the duty imposed by the Commonwealth on the importation of the like
goods, then such higher duty shall Ije collected on the goods when imported into
Western Australia from beyond the limits of the Commonwealth.

96. During a period of ten years after the establishment of the Commonwealth and Financial
thereafter until the Parliament otherwise provides, the I'arliament may grant financial a.«sistance to
assistance to any State on such terms and conditions as the Parliament thinks fit. Sutes.

97. Until the Parliament otherwise provides, the laws in force in any Colony which Audit,
has become or becomes a vState with respect to the leceipt of revenue and the expendi-
ture of money on account of the (iovernment of the Colony, and the review and -audit

of such receipt and expenditure, shall apply to the receipt of levenue and the expendi-
ture of money on account of the Commonwealth in the Slate in the same manner as if
the Commonwealth, or the Government or an ofticer of the Commonwealth, were
mentioned whenever the Colony, or the Government or an officer of the Colony, is
mentioned.

98. The power of the Parliament to make laws with respect to trade aud commerce Trade and com-
extends to navigation and shipping, and to railways the property of any State. nieree includes

99. The Commonwealth shall not, by any law or regulation of trade, commerce, or S'*''^ railways,
revenue, give preference to one State or any part thereof over another State or any part Commonwealth
thereof. nottofrfve

preference.

I'Xt. The Commonwealth shall not, by any law or regulation of trade or commerce, ^'or abridge
abridge the right of a State or of the residents therein to the reasonable use of the ^^tlV" "^
waters of rivers for conservation or irrigation.

101. There shall be an Inter-State C'ommission, with such powers of adjudication Inter-State
and administration as the Parliament deems necessary for the execution and raainten- Commission. >j
ance, within the Commonwealth, of the pro^^sions of this Constitution relating to trade

and commerce, and of all laws made thereunder.

102. The Parliament may by any law with respect to trade or commerce forbid, as Parliament

to railways, any preference or discrimination by any State, or by any authority consti- ™*J' ^o'bid pre-
tuted under a State, if such preference or discrimination is undue and unreasonable, or s^tate?^ "^

276

COMMONWEALTH OF AUSTRALIA [63 & 64 Vict.

Commissioners'
appointment,
tenure, and
remuneration

A I). 1900.

unjust to any State ; due regard being had to the financial responsibilities incurred bj'
any State in connexion with the construction and maintenance of its railways. But
no preference or discrimination shall, within the meaning of this section, be taken to be
undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State
Commission.

103. The members of the Inter-State Commission —

(i. ) Shall be appointed by the Governor-General in Council :

(ii.) Shall liold office for seven years, but may be removed within that time bj' the
Governor-General in Council, on an address from both Houses of the
Parliament in the same session praying for such removal on the ground
of proved misbehaviour or incapacity :
(iii. ) Shall receive such remiineration as the Parliament may fix ; but such re-
muneration shall not be diminished during their continuance in office.

Saving of certain 104. Nothing in this Constitution shall render unlawful any rate for the carriage of

rates. goods upon a railwaj^ the property of a State, if the rate is deemed by the Inter-State

Commission to be necessary for the development of the territory of the State, and if

the rate applies equally to goods within the State and to goods passing into the State

from other States.

Taking over
public debts of
States.

105. The Parliament may take over from the States their public debts as existing
at the establishment of the Commonwealth, or a proportion thereof according to the
respective numbers of their people as shown by the latest statistics of the Common-
wealth, and may convert, renew, or consolidate such debts, or any part thereof; and
the States shall indemnify the Commonwealth in respect of the debts taken over,
and thereafter the interest payable in respect of the debts shall be deducted and
retained from the portions of the surplus revenue of the Commonwealth payable to the
several States, or if such surplus is insufficient, or if there is no surplus, then the
deficiency or the whole amount shall be paid by the several States.

CHAPTER Y.

The States.

106. The Constitution of each State of the Commonwealth shall, subject to this
Constitution, continue as at the establishment of the Commonwealth, or as at the
admission or establishment of the State, as the case may be, until altered in accordance
with the Constitution of the State.

107. Every power of the Parliament of a Colonj' which has become or becomes a
State, shall, unless it is by this Constitution exclusively vested in the Parliament of the
Commonwealtli or withdrawn from the Parliament of the State, continue as at the
establishment of the Commonwealth, or as at the admission or establishment of the
State, as the case may be.

108. Every law in force in a Colony which has become or becomes a State, and
relating to any matter within the powers of the Parliament of the Conmionwealth,
shall, subject to this Constitution, continue in force in the State ; and, until provision
is made in that behalf by the Parliament of the Commonwealth, the Parliament of the
State shall have such powers of alteration and of repeal in respect of any such law as the
Parliament of the Colony had until the Colony became a State.

109. When a law of a State is inconsistent with a law of the Commonwealth, the
latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

110. The provisions of this Constitution relating to the Governor of a State extend
and apply to the Governor for the time being of the State, or other chief executive
oflScer or administrator of the government of the State.

111. The Parliament of a State may surrender any part of the State to the
Commonwealtli ; and upon such surrender, and the acceptance thereof by the Common-
wealth, such part of the State shall become subject to the exclusive jurisdiction of the
Commonwealth.

States may levy 112. After uniform duties of customs have been imposed, a State may levy on

charges for imports or exports, or on goods passing into or out of the State, such charges as may be

mspection laws, necessary for executing the inspection laws of the State ; but the net produce of all

charges so levied shall be for the use of the Commonwealth ; and any such inspection

laws may be anntiUed by the Parliament of the Commonwealth.

Chap. V.
Tfib States.

Saving of
Constitutions

Saving of Power
of Stale
Parliaments.

Saving of State
laws.

Inconsistency of
laws.

Provisions
referring to
Governor.

States may

surrender

territory.

Ch. 12.] CONSTITUTION ACT. 277

A.D. 1900

113. All fermented, distilled, or other intoxicating liquids passing into any State or Intoxicatiny
remaining therein for use, consumption, sale, or storage, shall be subject to the laws of Ufliuds-
the State as if such liquids had been produced in the Stat«.

114. A State shall not, without the consent of the Parliament of the Commonwealth, States may not
raise or maintain any naval or militarj- force, or impose any tax on property of any ^^JS^^'
kind belonging to the Commonwealth, nor shall the Commonwealth impose any tax on property of
property of an\' kind belonging to a State. Commonwealth

» ,1 J -, or State.

115. A State shall not coin money, nor make anything but gold and silver com a States not to
legal tender in payment of debts. coin money.

116. The Commonwealth shall not make any law for establishing any religion, or Commonwealth
for imposing any i-eligious observance, or for prohibiting the free exercise of any religion, !lf l^j^'lf *
and no religious test shall be required as a qualification for any office or public trust reh^wnT
under the Commonwealth.

117. A subject of the Queen, resident in any State, shall not be subject in any other Rights of
State to any disability or discrimination which would not be equally applicable to him residents in
if he were a subject of the Queen resident in such other Stat€. * **'

118. Full faith and credit shall be given, throughout the Commonwealth, to the Recognition nf
laws, the public Acts and records, and the judicial proceedings of everj- State. J^^^i ^- '>t

119. The Commonwealth shall protect every State against invasion and, on the Protection of

application of the Executive Government of the State, against domestic >'iolence. States from

^^ ° invasion and

120. Every State shall make provision for the detention in its prisons of persons ^'fljlj*'
accusefl or convicted of oflFences against the laws of the Commonwealth, and for the offenders ajrainst
punishment of persons convicted of such offences, and the Parliament of the Common- laws of the
wealth may make laws to give effect to this provision. Commonwealth.

CHAPTER YI. cuAP.vi.

New States. >e* statk.

121. The Parliament raaj- admit to the Commonwealth or establish new States, and New States may
may upon such admission or establishment make or impose such terms and conditions, ^»^.™'u'?' "''
including the extent of representation in either House of the Parliament, as it thinks fit. ^ * ^

122. The Parliament may make laws for the government of any territory surrenderee! Government of
by any State to and accepted by the Commonwealth, or of any territory placed by the territories.
Queen under the authority of and accepted by the Commonwealth, or otherwise acquired

by the Commonwealth, and may allow the representation of such territory in either
House of the Parliament to the extent and on the terms which it thinks fit.

123. The Parliament of the Commonwealth ma\', with the consent of the Parliament Alteration of
of a State, and the approval of the majority of the electors of the State voting upon the li^iits of States,
question, increase, diminish, or otherwise alter the limits of the State, upon such terms

and conditions as may be agreed on, and may, with the like consent, make provision
respecting the effect and operation of any increase or diminution or alteration of territory
in relation to any State affected.

124. A new State may be formed b}- separation of territory from a t'tate, but only Formation of
with the consent of the Parliament thereof, and a new State may be formed by the °^^ States,
union of two or more States or parts of States, but only with the consent of the Parlia-
ments of the States affected.

CHAPTER YII. Chap m

Miscellaneous. M.scHLiax.ois

125. The seat of Government of the Commonwealth shall be determined by the Seat of Govem-
Parliament, and shall be within territory which shall have been granted to or acquired n^'snt.
^y the Commonwealth, and shall be vested in and belong to the Commonwealth, and
shall be in the State of New South Wales, and be distant not less than one hundred
miles from Sydney.

Such territory shall contain an area of not less than one hundred square miles, and
such portion thereof as shall consist of Crown lands shall be granted to the Common-
wealth without an\- payment therefor.

The Parliament shall sit at Melbourne imtil it meet at the seat of Government.

278 COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT.

A,D. KWO.

Power to Her 126. The Queen may authorise the Gov^ernor-General to appoint any person, or any
aifthorise° persons jointly or severally, to be his deputy or deputies within any part of the
Governor- Commonwealth, and in that capacity to exercise during the pleasure of the Governor-
General to General such powers and functions of the Governor-General as he thinks fit to assign to
appoint such deputy or deputies, subject to anj' limitations expressed or directions given by the
epu les. Queen ; but the appointment of such deputy or deputies shall not afiect the exercise by
the Governor-General himself of any power or function.

Aborigines not 127. In reckoning the numbers of the people of the Commonwealth, or of a State or

to be counted other part of the Commonwealth, aboriginal natives shall not be counted.

population

Cap VIII CHAPTER YIII.

co^^mmoN' Alteration of the Constitution.

Mode of altering 128. This Constitution shall not be altered except in the following manner : —

The proposed law for the alteration thereof must be passed by an absolute majority
of each House of the Parliament, and not less than two nor more than six months after
its passage througli both Houses the proposed law shall be submitted in each State to
the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the
other House rejects or fails to pass it or passes it with any amendment to which the
first-mentioned House will not agree, and if after an interval of three months the first-
mentioned House in the same or the next session again passes the proposed law by an
absolute majority with or without any amendment which has been made or agreed to
by the other House, and such other House rejects or fails to pass it or passes it with
any amendment to which the first-mentioned House will not agree, the Governor-
General may submit the proposed law as last proposed by the first-mentioned House,
and either with or without any amendments subsequently agreed to by both Houses, to
the electors in each State qualified to vote for the election of the House of Representa-
tives.

When a proposed law is submitted to the electors the vote shall be taken in such
manner as the Parliament prescribes. But until the qualification of electors of members
of the House of Representatives becomes uniform throughout the Commonwealth, only
one-half the electors voting for and against the proposed law shall be counted in any
State in which adult sufi"rage prevails.

And if in a majority of the States a majority of the electors voting approve the
proposed law, and if a majority of all the electors voting also approve the proposed law,
it shall be presented to the Governor-General for the Queen's assent.

No alteration diminishing the proportionate representation of any State in either
House of the Parliament, or the minimum number of representatives of a State in the
House of Representatives, or increasing, diminishing, or otherwise altering the limits of
the State, or in any manner aflfecting the provisions of the Constitution in relation
thereto, shall become law unless the majority of the electors voting in that State
approve the proposed law.

S0I3:E33DTJX..E3 .

OATH.

I, A.B., do swear that I will be faithful and bear true allegiance to Her Majesty
Queen Victoria, Her heirs and successors according to law. So hklp me God !

AFFIRMATION.

I, A.B., do solemnly and sincerely affirm and declare that I will be faithful and
bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according
to law.

(Note. — The name, of the King or Queen of the United Kingdom of Great Britain and
Ireland for the tivie being is to be substituted Jrom time to time. J

COMMENTARIES

ON THE

CONSTITUTION

OP THE

COMMONWEALTH OF AUSTRALIA.

NOTE.

In these Commentaries, the text of each clause of the Act ancl
each section of the Constitution is printed in large type. After the
several clauses and sections are printed in small type the corresponding
provisions of other Federal Constitutions. Then follows a Historical
Note on each clause and section; after which come the notes, which
are numbered consecutively (with the sign §) throughout the Act and
Constitution.

In the large-type text each word or phrase annotated is followed
by an index number referring to the corresponding note. At the top
inner corner of each left-hand page there is a reference to the clause
or section under discussion; and at the top inner corner of each right-
hand page is a reference to the number of the note.

§1] TITLE. 281

COjVOIEXT^JlRIES

ox THE

CONSTITUTION OF THE AUSTRALIAN
COMMONWEALTH.

An Act^ to constitute the Commonwealth of Australia.

UsrreD States. — Constitution of the United States. (17th September, 1787.) [Title.]
Ca.v.\da. — .\n Act for the union of Canada, Xova Scotia, and Kew Brunswick, and the Govern-
ment thereof, and for purposes connected therewith. (29th March, 1867). [Title.]
Gbrjiast.— The Imperial Constitution. flSth Januarj-, 1871). [Title.]
Switzerland. — Federal Constitution of the Swiss Confederation (29th May, 1874). [Title.]

§ 1. "An Act."

Parts. — This Act may, for the purpose of analysis and classification, be considered
as consisting of the following parts :-(l) Title, (2) Preamble, (3) Words of enacting
authority, (4) The Covering Clauses 1 to 9, (5) The Constitution introduced by
Clause 9, and di\-ided into Chapters, Headings, Parts, and Sections, (6) The Schedule,
(7) The Marginal Notes.

Title.— The title of a Statute forms no part of the law, and in strictness ought not
to be taken into consideration at all. No more argument can be justly built upon the
title prefixed in some editions of the Statutes than upon the marginal notes against the
several sections- per Tindal, C.J. , in delivering to the House of Lords the opinion of
the consulted Judges. (Birtwistle i-. Vardill, 1839, 7 CI. and Finn., p. 929.)

The title of a statute is no part of the law — per Lord Mansfield, Rex v. Williams,
1 W. Bl. 95. Per Lord Hard wicke, Att.-Gen. v. Lord Weymouth, Ambl. 25. Per
Pollock, C.B., Salkeld v. Johnson, 2 Exch. 283, Digest of' English Case Law, Vol.
Xm., p. 1881.

There is no authority for saying that the title of a statute may be used where there
is any ambiguity in the statute. (Coomber v. Berks Justices, 9 Q'.B.D. 33. Id.)

The title cannot be resorted to for the purpose of construing the provisions of the
Act. (Hunter v. Nockolds, 19 L.J. Ch. 177. Id.)

" The title of a statute does not go for much in construing it, but I do not know
that it is to be absolutely disregarded. The title of Lord Campbell's Act, 9 and 10 Vic. c.
93, was certainly referred to as not without significance in the Court of Queen's Bench in
Blake v. Midland Rv. Co., IS Q.B. 93." (Per Wills, J., in Kenrick r. Lawrence,
25Q.B.D. 99. Id.) '

If there is in the provisions of an Act anything admitting of a doubt, the title of
the Act is a matter proper to be considered in the interpretation of the Act. (Shaw v.
Ruddin, 9 Ir. C.L.R. 214. Id.)

The enacting part of an Act is not to be controlled by the title or recitals unless the
enacting part is ambiguous, and then the title and recitals may be referred to for the
purpose of ascertaining the intention of the legislature. (Bentlev r. Rotherham Local
Board ; 4 Ch. D 588. Id.)

Headings. — The headings of a portion of a statute may be referred to in order to
determine the sense of any doubtful expressions in sections range<l under it. (Hammer-
smith and City Railway Co. r. Brand, L.R. 4 H.L. 171, 203 ; but see— per Lord Cairns,
id. p. 217. Eastern Counties Rail. Co. v. Marriage. 9 H.L. Ca 32. Union Steamship
Co. of N.Z. V. Melbourne Harbour Trust, 9 App. Ca. 365.)

Margikal Notes. — The marginal notes of the Act and the Constitution are copious
and systematic ; yet the bulk of authority would seem to show that they form no
portion of the law. In Claydon v. Green, L.R. 3 C. P. 511, Mr. Justice Willes said :—

" Something has been said about the marginal note in section 4 of 9 Geo. IV. c. 61.
I wish to say a word upon that subject. It appears from Blackstone's Commentaries,
VOL L p. 183, that formerly, at one stage of the Bill in Parliament it was ordered to be

282 COMMENTARIES ON THE CONSTITUTION. [Preamble.

engrossed upon one or more rolls of parchment. That practice seems to have continued
down to the session of 1849, when it was discontinued, without, however, any statute
being passed to warrant it (see May's Parliamentary Practice, 3rd ed., 382). Since
that time, the only record of the proceedings of Parliament —the important proceedings
•of the liighest tribunal of the Kingdom— is to be found in the copj' printed by the
Queen's printer. But I desire to record my conviction that this change in the mode of
recording them cannot affect the rule which treated the title of the Act, the marginal
notes, and the pimctuation, not as forming part of the Act, but merely as temporanta
€xpositio. The Act, when passed, must be looked at just as if it were still entered upon
•a roll, which it may be again if Parliament should be pleased so to order ; in which
case it would be without these appendages, which, though useful as a guide to a hasty
inquirer, ought not to be relied upon in construing an Act of Parliament."

Some doubts were thrown on the opinion of Mr. Justice Willes, expressed in 1868,
by a contrary view taken and acted upon in 1 87G by Sir George Jessel, Master of the
Rolls, who, in the case of re Venour's Settled Estates, 2 Ch. D. 525, said : — " This view
is borne out by the marginal note, and I may mention that the marginal notes of Acts
now appear on the rolls of Parliament, and consequently form part of the Acts, and in
fact are so clearly so that I have known them to be the subject of motion and amend-
ment in Parliament." In the case of Attorney-General v. Great Eastern R. Co., 1879,
11 Ch. D. 449, the Master of the Rolls gave expression to the same view. When this
case came before the Court of Appeal, consisting of James, Bramwell, Baggallay, L.JJ.,
he was overruled, and the law was finally settled that marginal notes form no legal part
of a statute. Per James, L.J. : "What authority has the Master of the Rolls for
saying that the courts do look at the marginal notes ?" Per Bramwell, L.J. : " What
would happen if the marginal notes differed from the section, which is a possibility, as
is shown in section 112 of this Act ? Does the marginal note repeal the section, or does
the section repeal the marginal note?" Per Baggallay, L.J. : "I never knew an
-amendment set down or discussed upon the marginal note to a clause. The House of
Commons never has anything to do with the amendment of the marginal note."

Punctuation. — The punctuation is no part of an Act of Parliament. In the case
of Barrow v. Wadkin, 24 Beav. 327, it was held that certain words in an Act were to be
read "aliens" duties, customs, and impositions," not as they were printed, "aliens,
duties, customs, and impositions."

Preamble.

Whereas^ the people^ of New South Wales, Victoria,
South Australia, Queensland, and Tasmania, humbly relying
on the blessing of Almighty God*, have agreed^ to unite in
one indissoluble Federal Commonwealth^ under the Crown^
of the United Kinofdom of Great Britain and Ireland^, and
under the Constitution^ hereby established^" :

And whereas it is expedient to provide for the admission
into the Conamonwealth of other Australasian Colonies and
possessions of the Queen :

Be it therefore enacted by the Queen's Most Excellent
Majesty", by and with the advice and consent of the Lords
SpirituaP^ and Temporal", and Commons^*, in this present
Parliament assembled, and by the authority of the same^^ as
follows : —

PREAMBLE. 283

Declaration" of American I.SDErESDKNCE.— We therefore the representatives of the United
States of America in general Congress assembled, appealing to the Supreme Judge of the
World for the rectitude of our intentions, do in the name and by the authority of the good
people of these colonies solemnly publish and declare that these united colonics are and of
right ought to be free and independent States ; that they are absolved from all allegiance
to the British Crown, and that all political connection between them and the state of
Great Britain is and ought to be totally dissolved . . . and for the support of this
declaration, with a firm reliance on the protection of Divine Providence, we mutually
pledge to each other our lives, our fortunes, and our sacred honour. (4th July, 1776.)

Articles of Cosfederatiox. — And whereas it hath pleased the ^eat Governor of the World
to incline the hearts of the Legislatures we respectively represent in Congress, to approve
of and to authorize us to ratify the said articles of confederation and perpetual union,
know ye, that we the undersigned delegates, by virtue of the power and authority to us
given for that purpose, do by these presents in the name and in behalf of our respective
constituents fully and entirely ratify and confirm each and every of the said Articles of
Confederation and perpetual union and all and singular the mattei-s and things therein
contained. (9th July, 177s ; ratified, 1781.)

United States Constititiox. — We the people of the United States, in order to form a more
perfect union, establish justice, ensure domestic tranquility, provide for the common
defence, promote the general welfare, and secure the blessings of liberty to ourselves and
our posterity, do ordain and establish this constitution for the United States of America.
(Preamble, went into operation 4th March 1789.)

British North America Act. — Whereas the Provinces of Canada, Nova Scotia, and New
Brunswick, have expressed their desire to be federally united into one Dominion under the
Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar
in principle to that of the United Kingdom. And whereas such a union would conduce to
the welfare of the Provinces and promote the interests of the British Empire. And
whereas on the establishment of the union b.v authority of Parliament it is expedient not
only that the Constitution of the Legislative" authority "in the Dominion be provided for,
but also that the nature of the Executive Government therein be declared. And whereas it
is expedient that provision be made for the eventual admission into the union of other
parts of British North America. (Preamble, 'igth March, 18(57.)

Constitution of the German Empire.— The Imperial Constitution for the protection of the
territory of the Confederation and of the laws of the same as well as for the promotion of
the welfare of the German people. (Preamble, 18th January, 1871.)

Constitution of Switzerland.— In the name of Almighty God. The Swiss Confederation,
desiring to confirm the alliance of the Confederates, to maintain and to promote the
unity, strength and honour of the Swiss nation. . . The purpose of the Confederation
is to secure the independence of the country against foreign nations, to maintain peace
and order within, to protect the liberty and the rights of the Confederates and to foster
their common welfare. (Preamble and Art. 2, 29th May, 1874.)

Historical Note. — The preamble of the Commonwealth Bill of 1891 was as
follows : —

" Whereas the Australasian colonies of [here name the colonies which have adopted
the Constitution^ have by [here describe the mode by which the assent of the colonies has
been expressed] agreed to unite in one Federal Commonwealth under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established : And whereas it is expedient to make provision for the admission into the
Commonwealth of other Australasian colonies and possessions of Her Majesty."

Under the Enabling Acts by which the Convention of 1897-8 was constituted, the
mode by which the assent of the colonies was to be expressed — namely, by the vote of
the people — was already determined ; and accordingly the first recital in the preamble
as drawn at Adelaide was as follows : —

" Whereas the people of [here name the colonies vhich have adopted the Constitution\
have agreed to form one indissoluble Federal Commonwealth under the Crown of the
United Kingdom of Great Britain and Ireland, and under the Constitution hereby
established :"

In Committee, at Mr. Deakin's suggestion, the word "form" was omitted and
"unite in" substituted. Several largely-signed petitions had been received praying
that there should be some recognition of (4od in the Constitution ; and Mr. Glynn
moved to insert the words "invoking Divine Providence." The Convention, however,
felt some doubt as to the propriety of introducing at that stage any religious formula
into the Constitution, and the amendment was negatived by 17 votes to 11. (Conv.
Deb., Adel., pp. 1183-9.) During the statutory adjournment, all the Legislative
Chambers, with one exception, suggested the insertion of some recognition of a Divine
Being. The Legislatures of New South Wales and South Australia, and the Legislative
Council of Western Australia, suggested the words " acknowledging Almighty God as
the Supreme Ruler of the Universe." The Legislature of Victoria suggested " in
reliance upon the blessing of Almighty God." The House of Assembly of Tasmania

284 COMMENTARIES ON THE CONSTITUTION. iPreamble.

suggested " duly acknowledging Almighty God as the Supreme Kuler of the Universe
and the source of all true Government " The Legislative Assembly of Western
Australia suggested "grateful to Almighty God for their freedom, and in order to
secure and perpetuate its blessings." Numerous petitions were received to a similar
effect ; and at the Melbourne session a proposal by Mr. Glynn to insert the words
"humbly relying on the blessing of Almighty God" was agreed to. (Conv. Ueb.,
Melb., 1732-41.)

In the Bill as introduced in the Imperial Parliament, the names of the five colonies
which had accepted the Bill were inserted in the blank left for that purpose. The
words "under the Constitution hereby established" were omitted, owing to the con-
tention of the Delegates that the alterations then proposed by the Imperial Government
would make this recital inaccurate ; but in Committee they were afterwards restored
(see Historical Introduction, pp. 230, 238, 242, 249, supra).

§ 2. "Whereas."

The proper function of a preamble is to explain and recite certain facts which are
necessary to be explained and recited, before the enactments contained in an Act of
Parliament can be understood. A preamble may be used for other reasons : to limit the
scope of certain expressions or to explain facts or introduce definitions. (Lord Tliring,
Practical Legislation, p. 36.) The preamble has been said to be a good means to find
out the intention of a statute, and, as it were, a key to the understanding of it. It
usually states, or professes to state, the general object and meaning of the Legislature
in passing the measure. Hence it may be legitimately consulted for the purpose of
solving an ambiguity or fixing the connotation of words which may possibly have more
than one meaning, or determining the scope or limiting the effect of the Act, whenever
the enacting parts are, in any of these respects, open to doubt. But the preamble cannot
either restrict or extend the legislative words, wiien the language is plain and not open
to doubt, either as to its meaning or its scope. (Maxwell on the Interpretation of
Statutes [1875], pp. 35-45.)

In the case of Overseers of West Ham v. lies (1883), 8 App. Cas. p. 388, Lord
Blackburn said : " My Lords, in this case the whole question turns upon the construction
of sect. 19 of 59 Geo. III. c. 12. I quite agree with the argument which has been addressed
to your Lordships, that in construing an Act of Parliament, where the intention of the
Legislature is declared by the preamble, we are to give effect to that preamble to this
extent, namely, that it shows us what the Legislature ai'e intending ; and if the words
of enactment have a meaning which does not go beyond that preamble, or which may
come up to the preamble, in either case we prefer that meaning to one showing an
intention of the Legislature which would not answer the purposes of the preamble, or
which would go beyond them. To that extent only is the preamble material."

Although the enacting words of a statute are not necessarily to be limited or
controlled by the words of the preamble, but in many instances go beyond it, yet, on a
sound construction of every Act of Parliament, the words in the enacting part must be
confined to that which is the plain object and general intention of the Legislature in
passing the Act ; and the preamble affords a good clue to discover what that object was.
(Per Lord Tenterden, C.J., in Halton v. Cove, 1 B. and Ad. 538 ; Salkeld v. Johnson, 2
Exch. 283; per Kelly, C.B., in Winn v. Mossman, L.R. 4 Ex. 300; cited, Broom's
Legal Maxims, 5th ed. p. 572.) "The only rule for the construction of Acts of
Parliament is that they should be construed according to the intent of the Parliament
which passed the Act. If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound the words in their natural
and ordinary sense. The words themselves alone do in such case best declare the inten-
tion of the lawgiver. But if an}' doubt arises from the terms employed by the Legisla-
ture, it has always been held a safe means of collecting the intention to call in aid the
ground and cause of making the statute, and to have recourse to the preamble, which

$§2-3.] PREA:MBLE. 285

according to Chief Justice Dyer (Plowd. 3t)9) is a key to open the minds of the makers
of the Act and the mischiefs which they intended to redress." (Per Tindal, C.J.,
delivering the opinion of the Judges in tlie Sussex Peerage Case, 11 CI. and Fin. 143 ;
per Buller, J., in K. v. Robinson, 2 East P.C. 1113; cited R. r. Johnson, 29 St. Tr.
303 ; Broom's Legal Maxims, 5th ed. 573.

It is a general rule, in the construction of statutes, that the preamble may extend,
but cannot restrain, the effect of an enacting clause. (Keams r. Cordwainers' Co., 28
L.J. C.P. 285 ; D.E.C.L. xiii. p. 1882.)

We ought not to restrict a section in an Act of Parliament by the preamble or
general purview of the Act where the section is not inconsistent with the spirit of the
Act. (Sutton tr. Sutton, 22 Ch. D. 521. Id.)

The preamble of an Act of Parliament is proper to explain the general body of it.
(Copeman v. Gallant, 1 P. Wms. 317. Id.)

If the enacting part of a statute will bear only one interpretation, the preamble
shall not confine it ; but if it is doubtful, the preamble may be applied to throw light
upon it. (Mason r. Armitage, 13 Yes. 36. Id.)

In construing an Act of Parliament, or any other instrument, the court is at liberty
to regard the state of the law at the time, and the facts which the preamble or recitals
of the Act of instrument prove to have been the existing circumstances at the time of
its preparation. (Attorney-General f. Powis, 2 Eq. R. 566. Id 1883.)

The preamble of an Act of Parliament, though it may assist ambiguous words, can-
not control a clear and express enactment. (Lees v. Summei-sgill, 17 Ves. SOS. Id.)

But it may serve to give a definite and qualified meaning to indefinite and general
terms. (Emanuel r. Constable, 3 Russ. 43H, overruling Lees i: Sumraersgill. Id.)

In construing Acts, the court must take into consideration not only the language of
the preamble, or any particular clause, but of the whole Act ; and if, in some of the
enacting clauses, expressions are to be found of more extensive import than in others, or
than in the preamble, the Court will give effect to those more extensive expressions, if,
upon a view of the whole Act, it appears to have been the intention of the Legislature
that they should have effect. (Doe d. Bywater v. Brandling, 6 L..J. (o.s. ) K.B. 162. Id.)

The effect of the preamble of a repealed Act was considered in Harding r. Williams,
1880, 14 Ch. Div. 197. The effect of a preamble to a particular section of an Act was
oonsidered in ex parte Gorely, re Barker, .34 L.J. (B.) 1.

§ 3. "The People."

The opening words of the preamble proclaim that the Constitution of the Common-
wealth of Australia is founded on the will of the people whom it is designed to unite and
', govern. Although it proceeds from the people, it is clothed with the form of law by an
' Act of the Imperial Parliament of Great Britain and Ireland, the Supreme Sovereign
Legislature of the British Empire. The legislative supremacy of the British Parliament
is, according to Dicey and all other modern jurists, the keystone of the law of the British
Constitution. John Austin holds (Jurisprudence, vol. I. pp. 251-255) that the sovereign
power is vested in the King, the House of Lords, and the House of Commons or electors.
Referring to Austin's definition, Dicey points out that the word "sovereignty" is some-
times employed in a political rather than in a strictly legal sense. That body is politically
sovereign or supreme in a State, the will of which is ultimately obeyed by the citizens
of the State. In this sense of the word the electors of Great Britain may be said to be,
I together with the Crown ariti the Lords, or perhaps in strict accuracy, independently of
I the King and the Peers, to be the body in which the political sovereignty is vested.
(Dicey, Law of the Constitution, p. 67.)

So^-EREiGNTY OF THE People.— In the United States the political as well as the
legal sovereignty of the people has been generally recognized ever since the Declaration
of Independence. John Wilson, one of the framei-s of the American Constitution, in
addressing the Pennsylvania State Convention in exposition and defence of that
instrument said : —

" When I had the honour of speaking formerly on the subject I stated in as concise
a manner as possible the leading ideas that occurred to me to ascertain where the
supreme and sovereign power resides. It has not been, nor I presume will be denied
that somewhere there is, and of necessitj' must be, a supreme absolute and uncontrollable
authority. This I believe may justly be termed the sovereign power ; for, from that
.gentleman's (Mr. Findlay's) account of the matter it cannot be sovereign unless it is

286 COMMENTARIES ON THE CONSTITUTION. [Preamble.

supreme ; for, saj'S he, a subordinate sovereignty is no sovereignty at all. I had the-
honour of observing that if the question was asked where tlie supreme power resided,
different answers would be given by different writers. I mentioned that Blackstone
would tell you that in Britain it is lodged in the British Parliament ; and I believe there
is no writer on this subject on the other side of the Atlantic but supposed it to be vested
in that body. I stated further that if the question was asked of some politician who
had not considered the subject with sufficient accuracy, where the supreme power residefl
in our Government, he would answer that it was vested in the State Constitutions.
This opinion approaches near the truth, but does not reach it, for the truth is the
supreme absolute and uncontrollable authority remains with the people. I mentioned
also that the prnctical recognition of this truth was reserved for the honour of this
country. I recollect no Constitution founded on this principle ; but we have witnessed
the improvement and enjoy the happiness of seeing it carried into practice. The great
and penetrating mind of Locke seems to be the only one that pointed towards even the
theory of this great truth." (Elliot's Debates on the Federal Constitution, vol. ii. ,
pp. 455, 456.) Cited, Roger Foster's Comment, on the Constit. (1895), I., p. 107.

The Constitution of the United States was not ordained and established by the
States, but, as the preamble declares, by "the people of the United States." It was
competent for the people to invest the general government with all the powers which
they might deem proper and necessary ; to extend or restrain these powers, according
to their own good pleasure, and to give them a jjaramount and supreme authority.
(Martin v. Hunter's Lessee, 1 Wheat. 304-324; Chisholm v. Georgia, 2 Dall. 419;
Brown v. Maryland, 12 Wheat. 455. Noted in Baker, Annot. Const. (1891), p. 1.)

The (government of the American Union is a Government of the people. In form
and in substance it emanates from them. Its powers are granted by them and are to be
exerci.sed on them and for their benefit. (Per Marshall, C.J., McCulloch v. Maryland,
4 Wheat. 316. Id.)

The expressions " the people of the United States " and " citizens " are sj^nonymous
and mean the same thing. They botli describe the political body which according to
American institutions, forms the sovereignty, holds the power and conducts the Govern-
ment through its representatives. The members of that body are called the " sovereign
people," and every citizen is one of this people and a constituent member of the
sovereignty. (Dred Scott v. Sandford, 19 How. 393. Id.)

Affirmations of the Preamble. — It will be noticed that the preamble to this
Constitution contains no less than eight separate and distinct affirmations or declarations,
(i.) The agreement of the people of Australia,
(ii.) Their reliance on the blessing of Almight3' God.
^^(iii.) The purpose to unite.

(iv. ) The character of the Union— indissoluble,
/(v.) The form of the Union — a Federal Commonwealth,
(vi.) The dependence of the Union— under the Crown,
/(vii. ) The government of the Union — under the Constitution.
, (viii.) The expediency of provision for admission of other Colonies as States.
Of the above eight declaratory parts of the preamble only four, viz., the third,
fifth, seventh, and eighth, find legislative expression in identifiable clauses to be
found in the body of the Act. The remaining four have, therefore, to be regarded
as promulgating principles, ideas, or sentiments operating, at the time of the forma-
tion of the instrument, in the minds of its framers, and by them imparted to and
approved by the people to Avhom it was submitted. These principles maj' hereafter
become of supreme interest and importance in guiding the development of the Consti-
tution under the influence of Federal Statesmen and Federal Electors. They may also
be of valuable service and potent effect in the Courts of the Commonwealth, aiding in
the interpretation of words and phrases which may now appear comparatively clear,
but which, in time to come, may be obscured by the raising of unexpected issues and
by the conflict of newly evolved opinions. It may be asked, why are four at least of
these momentous declarations to be found only in the preamble, and why have they no
corresponding counterparts in the corpus of the Act ? Tlie answer is obvious. First
as to the agreement of the people ; that is the recital of a historical fact, and it could
not therefore be reduced to the form in which a section of an Act of Parliament i»
generallj' cast, viz. , that of a command coupled with a sanction. Then, again, their
reliance on the Divine blessing is another recital of fact, incidental to the primary

§§3-4.]

PREAMBLE. 287

affirmation, and intioduced in a participial sentence for the purpose of avoiding the
suspicion of ostentation and irreserence ; there woidd, indeed, have been not only a
technical difficult}-, but an absolute impropriety in attempting to frame a clause designed
to give legislative recognition of the Deity. The indissolubility of the Federal Common-
wealth is affirmed as a principle : the efifect of that affirmation will be discussed at a
later stage. The declaration that the Union is under the Crown is appropriate and
fimdamental ; this also will be discussed at a later stage.

§ 4. " Humbly Relying on the Blessing of Almighty God."

This appeal to the Deity was inserted in the Constitution at the suggestion of most
of the Colonial Legislative Chambers, and in response to numerous and largely signed
petitions received from the people of every colony represented in the Federal Conven-
tion. When the expression was first formulated, towards the close of the session held
in Adelaide, it was thought advisable to postpone the final determination of a proposi-
tion 80 delicate and significant until a later stage, in order to give time and opportunity
for further consideration and for the additional manifestation of public opinion and
sentiment. In the interval between the Adelaide and Sydney sessions of the Conven-
tion, the Legislative Councils and Legislative Assemblies of New South Wales,
Victoria, South Australia, and Western Australia, and the House of Assembly of
Tasmania, resolved to recommend to the Convention the insertion in the preamble of
appropriate words acknowledging and invoking the blessing of the Supreme Peing.
During the session held in Sydney, as well as in the last session held in Melbourne,
supplementary petitions were received in favour of insertion of words of the foregoing
import. A few petitions were also received in opposition to the proposal. Finalh- the
words were inserted in the preamble without a division, but not without protest from
several members of the Convention. In justification of the insertion of the words
stress was laid on the great demonstration of public opinion in their favour, as expressed
in the recommendations of the Legislative bodies and in the petitions presented. It
was also pointed out that such an allusion was not without precedent in other notable
instruments of Government, such as the American Declaration of Independence, the
Articles of Confederation, and the Swiss Constitution. The views for and against are
fully expressed in the following extracts : —

" The foundations of our national edifice are being laid in times of peace ; the
invisible hand of Providence is in the tracing of our plans. Shoidd we not, at the very
inception of our great work, give some outward recognition of the Divine guidance that
we feel ? This spirit of reverence for the Unseen pervades all the relations of our civil
life. It is felt in the forms in our Courts of Justice, in the language of our statutes, in
the oath that binds the Sovereign to the observance of our liberties, in the recognition
of the Sabbath ; in the rubrics of our guilds and social orders, in the anthem, through
which on every public occasion we invocate a blessing on our executive head ; in our
domestic observances, in the offices of courtesy at our meetings and partings, and in the
time-honoured motto of the nation. Says Burke : * We know, and. what is better,
we feel inwardly tliat religion is the basis of civil society.' The ancients, who in the
edifices of the mind and marble have left us such noble exemplars for our guidance,
invoked, under a sense of its all-pervading power, the direction of the Divine mind.
Pagans though thej' were, and as yet but seeing dimlj-, they felt that the breath of a
Divine Being, 'that pure breath of life, that spirit of man,' which God inspired- as
Milton says- was the life of their establishments. It is of this that Cicero speaks
when he writes of that great elemental law at the back of all human ordinances, that
eternal principle which governs the entire universe, wisely commanding what is right
and prohibiting what is wrong, and which he calls the mind of God. Right through
the ages we find this universal sense of Divine inspiration- this feeling that a wisdom
beyond that of man shapes the destiny of states ; that the institutions of men are but
the imperfect instruments of a Divine and beneficent energy, helping their higher aims.
Should not we, sir, grant the prayer ot the many petitions that have been presented to
us, by recognizing at the opening of our great future our dependence upon God ?
Should we not fix in our Constitution the elements of reverence and strength, by
expressing our share of the universal sense that a Divine idea animates all our higher
objects, and that the guiding hand of Providence leads our wanderings towards the
dawn ? In doing so we will be but acting on what a great statesman called ' the

288 COMMENTARIES ON THE CONSTITUTION. [Preamble.

uniformly considered sense of mankind.' It was from a consciousness of the moral
anarchy of the world's unguided course that all races of man saw in their various
gradations of light the vision of an eternal Justice behind the veil of things whose
intimations kept down the rebellious hearts of earth's children. It was this that made
them consecrate their national purposes to God ; that their hands might grow strong
and their minds be illuminated by the grace of that power Divine through which alone,
as Plato says, the poet sings —

' We give like children, and the Almighty plan
Controls the forward children of weak man.'

Under a sense of this great truth, expressed some thousand years ago, I ask you to
grant the prayer of these petitions : to grant it in a hope that the Justice we wish to
execute may be rendered certain, in our work, and our union abiding and fruitful by
the blessing of the. Supreme Being." — Mr. P. M. Glynn, Conv. Deb., Adel., 1897,
p. 1185-6.

" I say frankly that I should have no objection to the insertion of words of this
kind in the preamble, if I felt that in the Constitution we had a sufficient safeguard
against the passing of religious laws by the Commonwealth. I shall, I hope, afterwards
have an opportunity, upon the reconsideration of the measure, to bring before the
Convention a clause modified to meet some criticisms which have been made on this
point, and if I succeed in getting this clause passed it will provide this safeguard. 1
shall have an opportvinity then of explaining how exceedingly important it is to have
some such safeguard. There is no time for me now to go into an elaborate history of
this question so far as the United States of America are concerned. I have investi-
gated it with a great deal of care, and I can give the result of my investigations to
honourable members, who, I hope, will not believe that I would mislead them if I could
help doing so with regard to the effect of what has taken place there. Because thej'
hacl no words in the preamble of the Constitution of the United States to the effect of
those which the honourable member (Mr. Glynn) wishes to insert. Congress was unable
to pass certain legislation in the direction of enforcing religion. There was a struggle
for about thirty years to have some words of religious import inserted in the preamble.
That struggle failed ; but in 1892 it was decided by the Supreme Court that the people
of the United States were a Christian people. . . That decision was given in

March or February, and four months afterwards it was enacted by Congress that the
Chicago Exhibition should be closed upon Sundays, simply upon the ground that Sunday
was a Christian day. The argument was that among a Christian nation you should
■enforce Christian observances. . . . There is nothing in the Constitution of the
United .States of America, even indirectly, suggesting a law of this sort. No doubt
the State of Illinois could have passed such a law, because it has all its rights reserved.
But there was nothing in the Constitution enabling the Congress to pass a law for the
closing of the Exhibition on Sunday. As soon as ever those parties who had been
working for the purpose of getting Sunday legalized throughout the United States
found that decision given in February, 1892, that 'this is n Christian nation,' tliey
followed it up quickly, and within four months there was a law passed for the closing of
the Exhibition on Sunday. ... It has been in force for five and a half or six years,
and it was struggled against, as my honourable friend will know. There was a strong
monetary interest against it, but I will say frankly that I was not aware that it has
been held to be constitutional. I understand tliough that there has been no dispute
among the legal men in that country as to its being constitutional. Honourable
members will hardly realize how far the inferential powers have been extended in
America. I should have tliought it obvious, and I think Mr. Wise will agree with nie
that the Congress had no power to pass a law of that sort. ... I should have
thought that it was not in the scope of Congress to pass a law, no matter how righteous,
to close the Exhibition on Sunday, but I find, on looking to a number of decisions in
the United States, that it has been held again and again that, because of certain
expressions, words, and phra.ses used in the Constitution, inferential powers are con-
ferred upon the Congress that go beyond any dreams we have at present. I know that
a great many people have been got to sign petitions in favour of inserting such
religious words in the preamble of this Bill by men who knew the course of the struggle
in the United States, but who have not told the people what the course of tliat struggle
is, and what the motive for these words is. I think the people of Australia ought to
have been told frankly wlien they were asked to sign these petitions what the liistory
in the United States has been on the subject, and the motive with which tiiese words
have been proposed. I think the people in Aiistralia are as reverential as any people
on the face of this earth, so I will make no opposition to the insertion of .seemlj' and
suitable words, provided that it is made perfectly clear in the substantive part of the
Constitution that we are not conferring on the Commonwealth a power to pass religious
laws. I want to leave that as a reserved power to the State, as it is now. Let the

j4.] PREAMBLE. 289

States have the power. I will not interfere with the individual States in the power
they have, but I want to make it clear that in inserting these religious words in the
preamble of the Bill we are not by inference giving a power to impose on the Federation
of Australia anj- religious laws." — Mr. H. B. Higgins, Conv. Deb., Melb., pp. 1734-5.

The case referred to by Mr. Higgins was Church of the Holy Trinity v. United
States, 143 U.S., p. 457. It came before the Supreme Court of the United States on
error from a United States circuit court. The question involved was the construction
and effect of the federal statute of 26th February, 1885, prohibiting the importation
and migration of foreigners and aliens under agi-eement to perform labour in the United
States. (-23 Stat. 332 c. 164.) The Church of the Holy Trinity was duly incorporated
as a religious society under the laws of the State of New York. E. Walpole Warren
was, prior to September, 1887, an alien residing in England. In that month the Church
made a contract with him, by which he w as to remove . to the city of New York and
enter into its service as rector and pastor, which Warren accordingly did. It was
elaimed by the United States that this contract, on the part of the Church, was for-
bidden by the federal Act, and an action was commenced to recover the penalty
prescribed by that Act. The Circuit Court held that the contract was within the
prohibition of the statute, and rendered judgment accordingly. {.S6 Fed. Rep. 303.)
The Church appealed to the Supreme Court of the United States, and the single question
presented was, whether the Circuit Court had erred in giving that decision. The
■decision of the Court w^as delivered by Mr. Justice Brewer on 29th February, 1892.
The Court was of opinion that the act of the Corporation was within the letter of the
prohibition ; for the relation of rector to his church was one of service, and implied
labour on the one side with compensation on the other. Further, as noticed by the
Circuit Judge in his opinion, the 5th section, which made specific exceptions, among
them being professional actors, artists, lecturers, singers, and domestic servants,
strengthened the idea that every other kind of labour and service was intended to be
reached by the first section. While there was great force in that reasoning, the Court
did not think that Congress intended to denounce, with penalties, a transaction like
that in the present case. It was a familiar rule, that a thing might be within the letter
of a statute, and yet not be within the statute, because not within the spirit, nor within
the intention of its makers. The Court therefore found that the whole of the Act, the
evil which was intended to be remedied, the circumstances surrounding the appeal
to Congress, the reports of the Committee of each House, all concurred in affirming
that the intent of Congress was simply to stay the influx of cheap unskilled labour.

" It was never suggested that we had in this country a surplus of brain toilers, and
least of all, that the market for the services of Christian ministers was depressed by
foreign competition. Those were matters to which the attention of Congress, or of the
people, was not directed. So far, then, as the eWl which was sought to be remedied
interprets the statute, it also guides to an exclusion of this contract from the penalties
of the Act. . . But beyond all these matters, no purpose of action against religion

can be imputed to any legislation, state or national ; because, this is a religious people.
This is historically true. From the discovery of this continent to the present hour,
there is a single voice making this affirmation. The Commission to Christopher
Columbus, prior to his sail westward, is from 'Ferdinand and Isabella, by the Grace of
God, King and Queen of Castile, &c. ,' and recites that it is hoped that by God's assistance

some of the continents and islands in the ocean will be discovered, &c The

first colonial grant, that made to Sir Walter Raleigh, in 1.584, was from ' Elizabeth by
the grace of God, of England, France, and Ireland, Queen. Defender of the Faith,' &c. ;
and the grant, authorizing him to enact statutes for the government of the proposed
colon}-, provides that ' they be not against the true Christian faith now professed in the
Church of England.' Coming nearer to the present time. The Declaration of Indepen-
dence recognizes the presence of the DiN-ine in human affairs, in these words : ' We hold
these truths to l)e self-evident, that all men are created equal, that they are endowed by
their Creator with certain inalienable Rights, that among these are Life, Liberty and
the pursiiit of Happiness.' 'We therefore, the Representatives of the United States of
America in general Congress assembled, appealing to the Supreme Judge of the world
for the rectitude of our intentions, do, in the Name and by the authority of the Good
People of these colonies solemnly publish and declare,' &c., ' and for the support of the
Declaration, with a firm reliance on the Protection of Divine Providence, we mutually

290 COMMENTARIES ON THE CONSTITUTION. [Preamble.

pledge to each other our Lives, our Fortunes, and onr sacred Honour.' On examination
of the Constitutions of the various States we find in them a constant recognition of
religious obligations. . . . It is the duty of the Court, under those cii-cumstances,
to say that, however broad the language of the statute may be, the Act, although within
the letter, is not within the intention of the legislature, and cannot be within the
statute." (Per Mr. Justice Brewer, Church of the Holy Trinity v. United States, 143
U.S. 457.)

On 25th April, 1890, Congress passed an Act to provide for celebrating the four
hundredth anniversary of the discovery of America by Christopher Columbus, bj' holding
in the city of Chicago, in the State of Illinois, an International Exposition of arts,
industries, manufactures, and products of the soil, mine, and sea. A Commission was
constituted for carrying out the enterprise, and preliminary arrangements were made.
This Act was passed by Congress in the exercise of its power to regulate and promote
inter-state and foreign commerce. On 5th August, 1892, Congress passed an Act (ch.
381, 1892) in furtherance of the first-mentioned Act. It recited 'that it was enacted
" For the purpose of aiding in defraying the cost of completing in a suitable manner the
work of preparation for inaugurating the World's Columbian Exposition." It then
proceeded to provide that there should be coined, at the mints, five million half-dollar
silver pieces, to be known as Columbian half-dollars. It next went on to make other
provisions and arrangements for the holding of the Exposition. Then came section 4,
as follows : —

"That it is hereby declared that all appropriations herein made for, or pertaining
to, the World's Columbian Exposition are made upon the condition that the said
Exposition shall not be opened to the public on the first day of the week, commonly
called Sunday ; and if the said appropriations be accepted by the corporation of the
State of Illinois, known as the World's Columbian Exposition, upon that condition, it
shall be, and is hereby, made the duty of the World's Columbian Commission, created
by the Act of Congress of April twenty-fifth, eighteen hundred and ninety, to make sucli
rules or modification of the rules of same corporation as shall require the closing of the
Exposition on the said first day of the week commonly called Sunday."

The amending Act, like the principal Act, was passed by Congress in the exercise of
its power over trade and commerce. In the debates which took place in Congress
during the passage of tlie amending Bill no reference appears to have been made to any
religious aspect of the proposed closing of the Exposition on Sundays, or to the case of
the Church of the Holy Trinity v. United States.

§ 5. "Have Agreed."

These words make distinct and emphatic reference to the consensus of the people,
arrived at through the procedure, in its various successive stages, prescribed bj' the
substantially similar Enabling Acts adopted by the Legislatures of the concurring
colonies. In four of the colonies Acts were passed enabling the people to take part
in the framing and acceptance or rejection of a Federal Constitution for Australia.
Through those Acts the people agreed, first, to send representatives to a Federal Con-
vention charged with the duty of framing for Australia a Federal Constitution under the
Crown in the form of a Bill for enactment by the Imperial Parliament ; and, secondly,
they agreed to pronounce their judgment upon the Constitution at a referendum, which
in each colony was arranged to follow the Convention. In all the colonies the
Constitution was eventually referred to the people. At this referendum each
voter was enabled to vote by ballot "Yes" or "No" on the question asked
in the ballot paper, "Are you in favour of the proposed Federal .Constitution?"
In this manner tliere was in four colonies a popular initiative and finally in all
the colonies a popular ratification of the Constitution, Mhich is thus legally
the work, as it will be for all time the heritage, of the Australian people. This
democratic method of establishing a new form of government may be contrasted
with the circumstances and conditions under which other Federal Constitutions
became law.

Unitkd States. — " It was well said by John Quincy Adams that the Constitution
was 'extorted from the grinding necessity of a reluctant nation.' It was accepted by a

§5.]

PREAMBLE. 291

small majority as the only alternative to disruption and anarchy. Its ratification was
the success of the men who were interested in the security of property, the maintenance
of order, and the enforcement of obligations against those who desired communism, law-
lessness, and repudiation. It was a conflict between the cities and backwoods, between
the mountains and plains. And the opposition was led by those cliques and families
who had learned to control for their private interests the State patronage of which the
new Government must necessarilj- deprive them. . . Two States refused to agree until
after it had gone into successful operation, and the rest threatened severe retaliation in
order to compel their coalition. Five of the other nine ratified with expressions of dis-
approval of its terms and a demand for subsequent amendments. In but three was it
adopted without a struggle. In several, success was only obtained bj' the application of
force, threats, or stratagem. In Connecticut, they silencetl with tar and feathers an
anti- federalist delegate who tried to talk out the Convention. A majority of the New
Hampshire delegates were determined or instructed to vote against ratification, and at
the first session the federalists considered a vote for an adjournment of three mouths a.s
a victory. At the second, while some of its opponents were 'detained' at dinner, the
Constitution was ratified by a snap vote taken at sharp one o'clock. The Legislature of
Pennsylvania obtained a quorum to call the State Convention by the unwilling presence
of two members dragged to the meeting by a mob who prevented their leaving the house.
In the State of New York, a majority of the Convention was anti-federal, and victor}'
was won by the threat of Hamilton, that in case of defeat New York, Kings, and West-
chester would ratify the Constitution as an independent State, and leave the northern
counties alone unprotected from foreign enemies without any outlet for their commerce
to the sea. The charge was believed, if not proved, that the federalists prevented the
circulation of the newspapers of the opposition with the mails. And in Pennsylvania
and Maryland they suppressed, by purchase and boycott, the reports of the debates in
the State Conventions." (Foster's Comment, on the Constit. I. p. 5.)

Canada. — " Delegates, comprising the leading men of both parties, were appointed,
by the Governors of Canada, Nova Scotia, New BrunsM-ick, and Prince Edward Island
at the instance of the several Legislatures. They met and drew up a scheme which,
having been submitted to the Legislatures, was afterwards carried to London ; there
finally settled with the Colonial Office, and embodietl bj- the Imperial Parliament in the
British North America Act, which forms the instimment of confederation. The consent
of the Canadian Legislature was freely and fairly given by a large majority. That of
the Legislature of New Brunswick was only obtained bj- heavy pressure, the Colonial
Office assisting, and after strong resistance, an election having taken place at which
every one of the delegates had been rejected by the people. That of the Legislature of
Nova Scotia was drawn from it, in defiance of the declared wishes of the people and its
breach of recent pledges by \'igorous use of personal influence with the members. Mr.
Howe, the patriot leader of the Province, still held out and went to England, threaten-
ing recourse to ^-ioleuce if his people were not set free from the bondage into which, by
the perfidy of their representatives, thej- had been betrayed. But he was gained over
by the promise of office, and those who in England had listened to his patriot thunders,
and had moved in response to his appeal, heard with surprise that the orator had taken
his seat in a Federationist Administration. Prince Edward Island bolted outright,
though high terms were ofiered her by the delegates, and at the time could not be
brought back, though she came in some years afterwards, mollified by the boon of a local
railway, for the construction of wliich the Dominion paid. In eflect. Confederation was
carried by the Canadian Parliament, led by the politicians of British and French
Canada, M'hose first object was to escape from their deadlock, with the help of the Home
Government, and of the Colonial Governors acting under its direction. The debate in
the Canadian Parliament fills a volume of one thousand and thirty-two pages. A good
deal of it is mere assertion and counter assertion as to the probable eflects of the
measure, political, militarj-, and commercial. One speaker gives a long essay on the
history of federation, but without much historical discrimination. Ahnost the only
speech which has interest for a student of political science is that of Mr. Dunkin. who,
while he is an extreme and one-sided opponent of the measure, tries at all events to
forecast the workings of the piojected Constitution, and thus takes us to the heart of
the question, whether his forecast is right or wrong. Those who will be at the trouble
of toiling through the volume, however, will, it is believed, see plainly enough that
whoever may lay claim to the parentage of confederation — and upon this momentous
question there has been much controvei-sy — its real parent was Deadlock. Legally of
course Confederation was the act of the Imperial Parliament, which had full power to
legislate for dependencies. But there was nothing morally to prevent the submission of
the plan to the people any more than there was to prevent a vote of the Colonial Legis-
latures on the project. The framers can hardly have failed to see how much the
Constitution would gain in sacredness by being the act of the whole communitj'. They
must have known what was the source of the veneration with which the American

292 COMMENTARIES ON THE CONSTITUTION. [Preamble.

Constitution is regarded by the people of the United States. The natural inference is
that the politicians were not sure that they had the people with them. They were sure
that in some of the provinces they had it not." (Canada and the Canadian Question, by
Goldwin Smith, pp. 141-3.)

§ 6. " To Unite in One Indissoluble Federal
Commonwealth."

All the words included in this expression, except " Indissoluble," occur in the
covering clauses of the Imperial Act, and they will be duly noted in the order in which
they appear there. "Indissoluble" is found in the preamble only and therefore
demands a detailed notice at this stage. A brief allusion to the presence of the word in
the preamble and its absence from the bodj^ of the Act has already been made (see
note § 3, "Affirmations of the preamble"), but it is now necessarj^ to enter upon a
more extended discussion and explanation of the principle of indissolubility.

Nullification and Secession. — The omission from the Constitution of the United
States of an express declaration of the permanence and indestructibility of the Union
led to the promulgation of the disastrous doctrines of nullification and secession, which
were not finally exploded until the Civil War of 1862-4 forever terminated the con-
troversy. The Kentucky and Virginia Resolutions, drafted by Jefferson (1798), and
adopted by the Legislatures of those States, in protest against the Alien and Sedition
Laws passed by the Federal Congress, contained the germ of the fatal and insidious
contention that the Union was merely a compact among the States ; that the States
severally had the right to resist any breach of the compact, and to pronounce that a
Legislative Act of the Federal Congress in excess of its powers, and encroaching on the
rights of the States, was a nullity to be followed, if necessary, by resistance, revolution,
and bloodshed.

This political heresy was afterwards (1828-33) elaborated by Hayne and Calhoun,
both in their debates with Daniel Webster, and in a series of addresses formulating their
views of the relations which the States and the general Government bore to each other.
In October, 1832, a State Convention was held in .South Carolina, at which it was
declared and ordained by the people of the State that the several Acts of Congress pur-
porting to impose duties on the importation of foreign commodities were unauthorized by
the Constitution of the United States, and were, therefore, utterly null and void. This
was the first serious experiment in nullification bj^ any State. The State Legislature of
South Carolina followed up the ordinances of the State Convention by passing several
Acts intended to give effect to the declaration of nullification, by authorizing the citizens
of the State to refuse to obey the Federal law which had been declared null and void.
The President of the Repviblic, General Jackson, issued a proclamation to the people of
South Cai'olina, requiring them to obey the Federal law, and he followed up his procla-
mation by calling out the Federal troops. Hayne, the Governor of the State, responded
by mustering and drilling 20,000 volunteers. Jackson is said to have sent a private
message to Calhoun threatening that he would hang him higher than Haman if nullifica-
tion were not abandoned. An armed conflict between the State and the Union was only
averted by a compromise, according to which Congress passed a new taritf law redressing
some of the grievances complained of ; and the controversj' for the time was terminated.

Each side, says Foster (Constitution, I. p. 154), claimed a victory. Calhoun's policy
had been successful, and the result encouraged his successors when they put to the test
their claim to the right of secession from the Union. The contest was resumed in a more
dangerous shape on 20th December, 1860, wlien a Convention of the people of South
Carolina was held, at which an ordinance of secession was adopted in the following
terms : —

" An ordinance to dissolve the union between the State of South Carolina and other
States united with her under the compact entitled ' The Constitution of the United
States of America.' We the people of the State of South Carolina in Convention
assembled do declare and ordain and it is hereby declared and ordained that the Ordin-

§ 6 ] PREAMBLE. 293

ance adopted by us in Convention on the •23rd of May, 1788, whereby the Constitution
of the United States was ratified, and also all other Acts and part of Acts of the Federal
Constitution, are hereby repealed, and the Union now subsisting between South Carolina
and other States under the name of the United States of America is hereby dissolved."'

This ordinance of secession was followed up by a declaration of independence, which
alleged that the Union was dissolved, and that South Carolina had resumed her position
amongst the nations of the world as a free, sovereign, and independent State. The
example of South Carolina was afterwards followed by the States of Mississippi, Florida,
Alabama, Georgia, Louisiana, and Texas. A Congress of seceding States was held at
Montgomery, Alabama, at which a provisional Constitution was adopted and a provi-
sional Government was formed. The Confederate Constitution was in many respects
similar to that of the United States. In April, 1861, the provisional Government was
called upon to give orders relating to Fort Sumter, a fortification still held by the United
States, but situatetl within the territory of one of the Confederate States ; the militia
of South Carolina were directed to attack the fort, and the Civil war began. Four
other States, Virginia, North Carolina, Tennessee and Arkansas, then seceded from the
Union and joined the Confederacj'. During the progress of the Civil war the Provisional
Constitution was for a considerable time unaltered, but in February, 1862, a formal
instrument of Government was adopted, which contained a few deviations from the
Constitution of the United States.

•'The trial of the wager of battle lasted more than five years. The dispute as to
the construction of the Constitution was too mighty to be decided in a Court of Justice.
The South had appealed to the final argument : in imitation of the Gallic Brennus, she
had thrown her sword into the scale. To her surprise the North, less timid than the
Romans, followed her example, and the weapon of the latter proved the heavier. The
result determined the character of the Constitution for all time and compelled the
conquered to consent to amendments which eradicated the evil (slavery) that had been
the cause of the fraternal discord. No amendment which disclaimed tlie right of
secession was written into the great Charter ; pen and ink were not needed to express
what had been stamped upon it by blood and iron." (Foster, Comment, on the Constit.
I., p. 185.)

The war was declared ended in August, 1866. Although the Federal Constitution
was not amended bj' the insertion of a new clause explicitly stating that the Union was
a permanent form of Government, several State Constitutions, including those of seven
of the rebellious States, were amended by the introduction of provisions expressly
repudiating the right of secession. In the case of the rebellious States, no doubt, the
amendment was carried through the pressure and coercion of the victorious army of the
North ; but it was also adopted in several new States, where no such influence pre-
vailed.

It was at a fearful cost that the principle was thus, once and for all, placed beyond the
region of doubt that the United States form a perpetual union of indestructible States.
This view received direct judicial sanction in the leading case of Texas v. White, 7
Wall. 700, which came before the Supreme Court in 1868. The question raised in that
case was whether the State of Texas, b^' framing in Constitutional Convention the
ordinance of secession, and by passing through its legislature Acts to give efiFect to such
ordinance, ceased to be a State of the Union, and whether its citizens ceased to be
citizens of the United States.

" The union of the States never was a purely artificial and arbitrary relation. . .
It received definite form and character and sanction by the Articles of Confederation.
By these the Union was solemnly declared to be 'perpetual.' And when these Articles were
found to be inadequate to the exigencies of the country the Constitution was ordained
to form a more perfect union. It is difficult to convey the idea of indissoluble unity
more clearly than by these words. What can be indissoluble if a perpetual union, made
more perfect, is not ? But the perpetuity and indissolubility of the Union by no means
implies the loss of distinct and individual existence or of the right of seK-govemment
by the States. ... It may be not unreasonably said that the preservation of the
States and the maintenance of their governments are as much within the design and care
of the Constitution as the preservation of the Union ; that the Constitution in all its
provisions looks to an indestructible union composed of indestructible States. When,

294 COMMENTARIES ON THE CONSTITUTION. [Preamble.

therefore, Texas became one of the United States she entered into an indissoluble
relation. . . . There was no place for reconsideration or revocation except through
revolution or through the consent of the States. Considered therefore as transactions
under the Constitution the ordinance of secession adopted by the Convention and ratified
by a majority of the citizens of Texas was absolutely null and utterly without operation
in law. The obligations of the State as a member of the Union and of every citizen of
the State as a citizen of the United States remained perfect and unimpaired. The
State did not cease to be a State nor her citizens to be citizens of the Union.'' (Per
Chase, C.J., in Texas v. White, 7 Wall. 700.) Boyd's Const. Cases, p. 555.

The triumphant Federalists in the United States did not propose any amendment of
the Constitution to remove doubts on the question raised by lawyers and revolutionary
publicists. They denied that there was any doubt as to the perpetual duration of the
Union. To propose an amendment declaring it indissoluble, after it had been so settled
by the sword, would have been equal to an admission that such a doubt existed.

Canada. — The Constitution of Canada does not contain any clause declaring the
perpetuity or indissolubility of the Dominion. That Constitution is embodied in an
Imperial Act, and, save with respect to certain matters of detail not affecting the funda-
mental features of the scheme, it can only be altered by the Imperial Parliament. No
general power to amend the Constitution has been granted to the Parliament and people
of Canada. Should they require to modifj* any constitutional pro%nsion, not within the
jurisdiction of the Dominion, an application has to be made to the Imperial Parliament
to effect the required legislation. Consequently, the Dominion is absolutely indissoluble
so far as the Parliament and people of Canada are concerned. The Imperial Parliament,
which created it, could at any time dissolve it. No clause in the Imperial Act declaring
the Dominion indissoluble could have interfered with or limited the supreme sovereign
power by which the Dominion was created. Nothing is more certain than that " a Par-
liament cannot so bind its successors, by the terms of any statute, as to limit the discretion
of a future Parliament, and thereby disable the Legislature from entire freedom of action
at any future time, when it might be needful to invoke the interposition of Parliament
to legislate for the public welfare." (Todd, Parliamentary' Government in the British
Colonies, 2nd ed. p. 24.3. )

These considerations explain the circumstance that the Canadian Constitution
contains no reference to the durability, or otherwise, of the Dominion. They do not
-account for the fact that, whilst the indissolubility of the Commonwealth is not affirmed
by any clause in the Imperial Act, it is recited as an accepted principle in the preamble.
Why was it placed in the preamble ? The only reason which can be suggested, is that
the Australian Parliament and people have a general power to amend the Constitution,
and it may have been considered wise and prudent that, coupled with a right so great
and important, there should be a reminder, placed in the fore-front of the deed of
political partnership between the federating colonies, that the union, scaled by
Imperial Parliamentary sanction, was intended by the contracting parties to be a lasting
one, and that no alteration should be suggested or attempted inconsistent with the
■continuity of the Commonwealth as an integral part of the British Empire.

§ 7. "Under the Crown."

This phrase occurs in the preamble, and is not repeated, either in the clauses
■creating the Commonwealth or in the Constitution itself. It corresponds with similai
words found in the preamble of the British North America Act (supra) and in thi:
Commonwealth Bill of 1891. It is a concrete and unequivocal acknowledgment of a
principle which pervades the whole scheme of Government ; harmony with the British
Constitution and loyalty to the Queen as the visible central authority uniting the Briiiali
Empire with its nmltitudinous peoples and its complex divisions of political power. It
has been introduced rather out of an abundance of caution, than from any consideration
that its omission might suggest a doubt or from any present idea of actual necessity.

§ 7.] PREAMBLE. 295

Some years ago a few ardent but irresponsible advocates of Austi-alian federation
indtilged in predictions that the time would inevitably come when Australia would
separate from the mother country and become an independent Republic. Those ill-
considered utterances caused, at the time, strong expressions of disapproval throughout
the colonies, which eflFectually prevented the repetition of such suggestions, as being
beyond the arena of serious contemplation and debate. Throughout the political
campaign which preceded the election of the Federal Convention, not a solitary public
writer or speaker seriously discussed the possibility, much less the probability, of
separation.

Hence the words, " Under the Crown," have been inserted in the preamble to the
Constitution, not as a protest against any growing sentiment adverse to the British
connection, but partly to harmonize it with the Canadian precedent and partly because
there was no reason for departure from the precedent of 1891.

In explanation of the appearance of the words in the preamble and their non-
repetition in any of the enacting clauses or sections, it may be mentioned that though
the words, " Under the Crown," are introduced in the shape of a recital of an apparently
accepted and indisputable fact that the people have so agreed, and not in the shape of a
command, coupled with a sanction, yet the origin of the Commonwealth and its form of
government shows : —

1. That it has been established by the concurrence of the Queen.

2. That the Queen is an essential part of the Federal Parliament.

3. That the Queen is the head of the Federal Executive.

4. That the Queen is to be represented in the Commonwealth by a Governor-

General.
These provisions are stronger than any formal affirmation in the preamble, as evidences
and guarantees that the Commonwealth is an integral part of the Empire presided over
by the wearer of the Triple Crown of England, Ireland, and Scotland — which, let us
hope, it will continue to be so as long as that Empire endures. Although to some
extent they are surplusage, as involving a recapitulation of what is otherwise provided
in the Constitution, the words, "Under the Crown," standing as they do in the
preamble to the Imperial Act, may hereafter be of service in answering arguments in
favour of amending the Constitution by repealing the provisions above referred to.
Strictly speaking, such amendments might be proposed, in the manner pro\ided by the
Constitution ; they are not in terms prohibited by the Constitution. Should they be
proposed, however, strong arguments against their constitutionality, and even their
legality, would be available in the words of the preamble. It might be contended with
great force that such amendments would be repugnant to the preamble ; that thej' would
at least involve a breach of one of the cardinal understandings or conventions of the
Constitution, and, indeed, the argument might go so far as to assert that they would be
vltra virtu of the Constitution, as being destructive of the scheme of Union under the
Crown contemplated in the preamble.

On the other hand, it would be urged that section 128 of the Constitution defines
the procedure by which, and the limits within which, the Constitution may be altered ;
that the only limitation on the power of alteration is the one indicated at the end of the
section, viz. : — That no alteration diminishing the proportionate representation of any
State in either House of the Parliament or the minimum representation of a State in the
House of Representatives, or altering the limits of a State, shall become law, unless the
majority of the electors voting in that State affirm the proposed amendments. That is |
the only thing like an exception to, or a restriction on, the general power of amendment (
specified in the Constitution, and it might afford ground for the contention that accord- [
mg to the rule of construction, expressio unius exdusio alteritis, no other limitation was !
intended. It might also be submitted that an alteration not contrary to any express
provision in the covering clauses would be quite legal even though it were inconsistent
with the preamble, and even though it were contrary to the obvious intentions of the

296 COMMENTARIES ON THE CONSTITUTION. [Preamble.

plan of Government therein contemplated. It might be added that the preamble could
not be utilized to cnt down the general power to amend, and that if there were any incon-
fiistency between an affirmation in the preamble and the power to amend, conferred by
the Constitution, the enacting words must prevail.

To this the opponents of such amendments might rejoin bj' drawing attention to the
Colonial Laws Validitj' Act, 1865 ('28 and 29 Vic. c. 63), passed to remove doubts as to
the validitj' of colonial laws ; section 2 of which provndes that any colonial law, repug-
nant to the provisions of anj' Act of Parliament extending to the C-olony to which such
law may relate, shall, to the extent of such repugnancy, but not otherwise, be absolutely
void and inoperative. An amendment of the Constitution of the Commonwealth would
of course be a colonial law within the meaning of this section.

Probably such a question would not be so far developed by legislative action as to
assume a form capable of being discussed in the Federal High Court. Even if any
amendment, to the effect under consideration, were carried by an absolute majority in
both Houses of the Federal Parliament — even if it were approved of by a majoritj' of
the electors and a majoritj- of the States— it would still have to be reserved for the
Royal assent. It is not likely that such assent would be given without the authority' of
the Imperial Parliament. If that Parliament, which created the Commonwealth and
the Constitution of the Commonwealth, consented to a form of legislative and executive
government which ignored the Crown, no trouble would arise. It is not likely that
such consent would either be asked for or given, except in a combination of circum-
stances and a revolution of ideas and sympathies of which we can now form no possible
conception.

§ 8. " United Kingdom of Great Britain and Ireland."

The composite nature of the United Kingdom created by the union of the Crowns
of England, Scotland, and Ireland, presents interesting points of comparison and con-
trast with the form of federal union established bj- the Constitution of the Common-
wealth of Australia. The United Kingdom is ruled by a single sovereign Parliament ;
but the identity of the component parts is by no means wholly lost, as will appear from
a brief reference to the Acts of Union.

Union of England and Scotland. — Although the Crowns of England and Scotland
were united upon the accession of James VI. of Scotland to the English throne, under
the title of James I., in 1603, the two countries continued separate and distinct king-
doms, subject to the administration of two different executives and to the legislation of
two independent Parliaments, for over one hundred years. The Union of the two
kingdoms was, for many years, projected and discussed before the proposal assumed a
tangible shape. During the reigns of Charles II. and James II., Commissioners were
appointed in England to negotiate with Commissioners similarlj- appointed in Scotland
in order to settle the terms of the Union, but no agreement was then arrived at. The
realization of the manifest destiny of England and Scotland was resei-ved for the reign
of Queen Anne.

By the Act of 1 Anne c. 8 (1702), authority was given for the appointment of a
Commission representing England to meet a similar Commission representing Scotland
to settle the Articles for the Union of the two kingdoms. The Commissioners met at
Whitehall on 16th April, 1706, and they completed their labours and signed the treaty
of Union on 22nd July following. The Treaty consisted of 25 Articles, of which the
leading provisions were as follows : —

The Union. — That on 1st Maj-, 1707, and for ever afterwards, the kingdoms of
England and Scotland should be united into one kingdom by the name of
Great Britain ; that the succession to the throne of Great Britain should be
vested in the Princess Sophia and her heirs according to the Act of Settlement

fassed by the English Parliament for that purpose ; that there should be one
arliament for the whole kingdom.

§8.] PREAMBLE. 297

BiyhiJi of Subjects. — That all the subjects should enjoy the same rights, immunities
and privileges ; have the same allowances, encouragements and drawbacks, and
be under the same regulations and restrictions as to trade and commerce.
Trade and Firuince. — That Scotland should not be charged with temporary duties
on certain commodities ; that the sum of £398,103 should be granted to Scot-
land as equivalent for such parts of the customs and excise charged upon that
kingdom in consequence of the tinion, as would be applicable to the pa^inent
of the debts of England, according to the proportions which the customs and
excise of Scotland bore to those of England ; that as the revenues of Scotland
should increase, a fair equivalent should be allowed for such proportion of the
said increase as should be applicable to payment of the debts of England ; that
the sums to be thus paid should be employed in reducing the coin of Scotland to
the standard and value of the English coin, in pajing off the capital, stock
and interest due to the proprietors of the African Company which should
immediately be dissolved, in discharging all the public debts of the Kingdom
of Scotland, in promoting and encouraging manufactures and fisheries under
the direction of Commissioners to be appointed by Her Majesty and accotint-
able to the Parliament of Great Britain.
Public Lair's. — That laws relating to public right, policy, and civil government
should be alike throughout the whole kingdom, and that no alteration should
be made in laws which concerned private right except for the evident benefit
of the people of Scotland.
Judicial Syistem. — The Court of Session and all other courts of judicature in Scotland
should remain as constituted, with all authority and privileges as before the
union, subject only to the power of the Parliament of the United Kingdom.
Local and Municipal. — All heritable oflBces, superiorities, heritable jurisdictions,
offices for life, and jurisdictions for life, should remain the same as rights and
properties ais then enjoyed by the laws of Scotland. The rights and privileges
of the royal boroughs in Sc-otland were to remain imaltered.
JReprenentafion in Imperial Parliament. — Scotland should be represented in Parlia-
ment by sixteen peers elected from Parliament to Parliament, and forty-five
commoners to be elected in a manner to be settled by the Parliament of Scot-
land before its dissolution. All peers of Scotland and the successors to their
honours and dignities should from and after the union take rank and
precedency next and immediately after the English peers of the like orders
and degrees at the time of the union, and before all English peers of the like
orders and degrees as should be created after the union ; they should be tried
as peers of Great Britain, and enjoy all the privileges of peers of England
except that of sitting in the House of Lords and the privileges depending
thereon, and particularly the right of sitting upon the trials of peers.
7Tu Crown. — The crown, sceptre and sword of state, the records of Parliaments,
and all other records, rolls and registers whatsoever, shoidd still remain as
they were in Scotland.
ExiMing Laics. — All laws and statutes in either kingdom inconsistent with these
terms of union should cease and be declared void by the Parliaments of the
two kingdoms. The standard of weights and measures should be reduced to
that of England. The laws relating to trades, customs and excise shoidd be
the same in England and Scotland ; all other laws in Scotland to remain in
force until alterSi by the Parliament of Great Britain.
Religion. — The establishment of the Presbyterian religion was guaranteed in Scot-
land, with a proviso that it should not at all concern the established religion
of England ; each religion was in its respective country to maintain its
j acknowledged ascendency. It was further provided that every professor of

} a Scottish University should acknowledge, profess and subscribe to the ' Con-

fessions of Faith ; ' these provisions relating to religion were asserted to be
fundamental and essential conditions of the union in all time coming.
, In the Scottish Parliament, October, 1706, every article in the treaty was bitterly

j resisted, but eventualh- it was carried by an overwhelming majority of votes, with but
I lew alterations of any consequence ; in fact the only additions made to the articles in the
Scottish Parliament related to some tri\ial bounty on oats, which were then grown
j largely in Scotland ; to regulations relating to salted meats and salted fish, and to the
encouragement of the herring industry. In the final session of the Scottish Parliament
an Act was passed to regulate the election of 16 peers and 4o commoners to represent
Scotland in the British Parliament. On the 25th March, 1707, the Scottish Parliament
roBe never to reassemble.

•298 COMMENTARIES ON THE CONSTITUTION. [Preamble.

On 28th January, 1707, the English Parliament met and was informed by the
■Queen that the Articles of Treaty with some slight modifications had been adopted by
the Scottish Parliament. The terms of the treaty were fiercely resented in some
quarters. High Churchmen denounced the establishment of two religions ; others pro-
tested against the financial part of the arrangement. However, a Bill ratifying the
treaty was passed by the English Parliament, amid vehement protests from a few, but
without serious opposition. The result of the ratification of the treaty by the two
Parliaments was the establishment of the one Kingdom of Great Britain in place of the
two Kingdoms of England and Scotland. The Parliament of England and the Parlia-
ment of Scotland both ceased to exist, and the Parliament of Great Britain took their
place. (6 Anne c. 1 1 . )

" No change ever took place under more violent or general opposition, none in which
more evils and calamities were prognosticated. The Scotch believed that their trade
would be destroyed, their nation oppressed, and their country altogether ruined through
the overwhelming influence of England. But if we look at the condition of Scotland
now — at the increase of its population, the increase of its wealth and comfort, the
growth of its towns, the extension of its trade and manufactures— there is scarcely
anything so striking in the history of the world as the wonderful advance of Scotland
since and in consequence of the union. If we look at the vast numbers of Scotch who have
settled in England and in all the colonies, at the numbers who have located themselves in
eminent places in the literature, law, and government of England, how wonderful is the
contrast betwixt the outcry against the union and the results ! But to all parts of the
Empire the union has been scarcely less beneficial by the peace, unity, and strength
which it has conferred, and by the infusion of Scotch enterprise, industry, and per-
severance into the texture of the English character. What Defoe says of the treaty is
undoubtedly true. It is one of the greatest measures and most ably-framed which ever
distinguished any reign or country. ' I shall not,' says that great writer, ' descend to
encomiums on the persons of these treaters, for I am not about to write a panegyric here,
but an impartial and unbiassed history of fact, but since the gentlemen have been
illtreated, especially in Scotland — charged with strange things, and exposed in print by
some who had nothing but their aversion of the treaty to move them to maltreat them,
I must be allowed on all occasions to do them justice in the process of this story. And
I must own that generally speaking, they were persons of the greatest probity, the best
characters, and tlie stoutest adherents to the true interests of their country : so their
abilities will appear in every step taken in so great a work ; the bringing it to so good a
conclusion and that in so little time, the rendering it in so concise a form and so fixing
it that when all the obstruction imaginable was made to it afterwards in the I'arliament
of Scotland, the mountains of objections that first aroused the world proved such mole-
hills, were so easily removed, raised so much noise, and amounted to so little in substance
that, after all was granted that could in reason be demanded, the amendments were so
few and of so little weight, that there was not one thing material enough to obtain a
negative in the English Parliament.'" (Cassell's Hist, of Eng., IV., p. 225.)

By the Reform Act of 1832 (2 and 3 Will. IV. c. 45) the number of Scotch mem-
bers in the House of Commons was increased to 53 in all, and by the Reform Act of
1867 (30 and 31 Vic. c. 102) that number was increased to 60, whilst by the redistribution
of seats in 1885 (48 Vic. c. 3) Scotland was allotted 12 additional seats, making in all 72
members.

Union of Great Britain and Ireland. — In the reign of Henry II. (1172-3)
Ireland became a Dominion or Lordship of the King of England, who was styled
^ Dominus Hiheniice.' Since then the Crown has been continuously represented in
Ireland by an Administrative Official under the varying names of Chief Governor,
Justiciary, Lord Deputy and Lord Lieutenant. The Lordship of Ireland was eventually
converted into a kingdom, and in 1542 the King of England became King of Ireland ;
that title was conferred on him by an Irish Act, 33 Henry VIII, Ir. c. I., and was
recognized by an English Act, 35 Henry VIII. c. 3. From that period the Crown of
Ireland became inseparably annexed to the Crown of England.

Ireland may be deemed to have had legislative assemblies or councils similar to
those in England, based on the principle of elective representation, from the year 1295.
Those assemblies or councils gradually developed into a Parliament, composed, according
to the English model, of a House of Lords and a House of Commons. There were, how-

^^8.] PREAMBLE. 299

ever, several serious limitations on the authority of the Irish Parliament ; (I) internal
restraints in the shape of the Irish Privy Council, and restrictive regulations self-imposed
by the Irish Parliament, under the dominating influences of the executive ; and (2)
external restraints in the competing authoritj- of the English Parliament. In 10 Hen.
VII. (1495) an Act was passed by the Irish Parliament called "Poynings' Law;" taking
its name from Sir Edward Poynings, the Chief Governor. This law provided that no
Parliament should be convened in Ireland until the causes and considerations thereof,
and all such measures as were proposed to be introduced and all such Acts as were pro-
posed to be passed, were previously certified by both Houses to the King, and the King's
license for the holding of the Parliament M'as issued ; and only such business as was
previously approved of by the King could be introduced into the Parliament and dealt
with by it when it was assembled. This greatly contracted the authority of the Irish
Parliament, and, in time, nothing was left to it but the power to reject without the
power to initiate or amend Bills.

In addition to this internal limitation, the Irish Parliament was restrained, in its
legislative action, bj- a claim put forward by the English Parliament that it had a con-
current, if not a paramount, jurisdiction over, and right to legislate for, Ireland ; it
being contended that the authority of the Irish Parliament was not exclusive but
secondary and subordinate. In the reigns of Charles II., William III., and Anne,
several statutes were passed in England expressly binding Ireland, such as the Navnga-
tion Act, the Woollen Act, and the Tobacco Act. Despite protests, the English Parlia-
ment continued to legislate for Ireland. Especially in the matter of foreign trade, the
Parliament of England, and afterwards the Parliament of Great Britain, claimed the
right to legislate for the whole of the British Isles, and at length the Act of 6 Geo. I.
c. 5 (1719) was passed, declaring that Ireland was a subordinate kingdom, and that the
Parliament of Great Britain had full power to bind the people of Ireland. In 17S2,
however, the legislative independence of the Irish Parliament was restored by three
statutes. (1) By 22 Geo. III. c. 53 (1782), the Act of 6 Geo. I. c. 5 was repealed. (2)
By 23 Geo. III. c. 28 (1783), the right of the Irish people to be bound only by the Acta
of the Irish Parliament was aflBrmed in these words : — " The right claimed by the people
of Ireland to be bound only by laws enacted by His Majesty and the Parliament of that
kingdom in all cases whatsoever, and to have all actions and suits instituted in that
kingdom decided in His Majesty's courts there finally and without appeal from thence,
is established and ascertained for ever." (3) By 21 and 22 Geo. III. Ir. c. 47 (1781), the
Crown assented to a modification of PojTiings' Law, and thus fieed the Irish Parliament
from its self-imposed restraints, and from the control of the Privy CounciL

After 1782, as before, the Irish Parliament had no control of the Executive, which
was vested in the Lord-Lieutenant and his Chief Secretary, who were nominated by the
British Government. The King, as King of Great Britain, acted on the advice of his
Ministers ; as King of Ireland, on the advice of the Irish Executive. The views and
interests of England might seriously difler from those of Ireland on grave questions, such
as peace and war, trade and commerce. The Irish Parliament, however, whilst it had
no voice in such great issues, could not be forced to raise men or money to carry on a
war. A conspicuous defect of such a complicated distribution of sovereign power was
that it was unaccompanied by any provisions for the settlement of deadlocks or for
j reconciling differences that might arise between the two kingdoms.

The circumstances that led up to the passage of the Act of Union necessarily belong
to the political history of Ireland. By the Irish Act, 4<) Geo. III. Ir. c. 38, and by the
British Act, 39 and 40 Geo. III. c. 67 (1800) the Kingdoms of Great Britain and Ireland
became united into one Kingdom under the name of the L^nited Kingdom of Great
Britain and Ireland. The Parliaments of Great Britain and of Ireland became merged
in one Imperial Parliament of the United Kingdom. Some of the chief Articles of this
great statute, condensed from Tomlins' Law Dictionary, may be reproduced : —

300 COMMENTARIES ON THE CONSTITUTION. [Preamble.

The Union. — The kingdoms of Great Britain and Ireland shall after 1st January,
1801, and for ever, be united into one kingdom, by the name of the United
Kingdom of Great Britain and Ireland. — Art. I.

The Crown. — The succession to the Crown of the United Kingdom shall continue
limited and settled in the same manner as the succession to the Crown of
Great Britain and Ireland stands limited and settled according to the existing
laws, and to the Terms of Union between Great Britain and Scotland. —
Art. II.

The Executive. — The Act of Union made no alteration in the Constitution of the
Irish Executive, which still consists of a Lord Lieutenant, assisted by the
Privy Council of Ireland. — Art. II.

PaWiaw)e7ii. — The United Kingdom to be represented in one Parliament. Four
Lords Spiritual of Ireland, by rotation of Sessions, viz. — One of the four
Archbishops, and three of the eighteen bishops, and 28 Lords Temporal of
Ireland (elected for life, by the Peers of Ireland), shall sit in the House of
Lords of the Parliament of the United Kingdom ; and in the House of
Commons, 100 Commoners ; two for each of the 32 counties in Ireland ; two
for Dublin ; two for Cork ; one for Trinity College, Dublin ; and one for each
of the 31 most considerable cities, towns, and boroughs. — Arts. III.-IV.

EccleKiastical. — The Churches of England and Ireland shall be united into one
Protestant Episcopal Church to be called "The United Church of England
and Ireland," according to the doctrine, worship, discipline, and government
of the Church of England. The Church of Scotland to remain as under the
Union of that Kingdom. — Art. V.

Commerce. — The subjects of Great Britain and Ireland shall be entitled to the
same privileges, and be on the same footing as to encouragements and
bounties on the like articles, the growth, produce, or manufacture of either
country respectively, and generally in respect of trade and navigation in the
ports and places in the United Kingdom, and its dependencies ; and in all
foreign treaties Irish subjects shall be put on the same footing as subjects of
Great Britain. All prohibitions and bounties on the export of articles, the
growth, produce, or manufacture of either country to the other, shall cease.
All articles, the growth, produce or manufacture of either country (not
enumerated and subjected by the Act to specific duties) shall be imported
into each country from the other free of duty, except countervailing duties.
For 20 years from the Union certain articles were subjected to specified
duties.

National Debt.—Hy Article VII. it was provided that the charge of the separate
national debt of either country before the Union should continue to be
separately defrayed by the respective countries.— Art. VII.

Existing Laws. — All laws in force at the time of the Union, and all courts, cinl
and ecclesiastical, within the respective kingdoms, shall remain as established,
subject to future alterations by the United Parliament. All writs of error
and appeals (determinable in the House of Lords of either kingdom) shall be
decided by the House of Lords of the United Kingdom. The Instance
Court of Admiralty in Ireland shall continue, with appeals to the delegates
in Chancery there. — Art. VII.

§ 9. "Under the Constitution."

I The words, "Under the Constitution," imply substantial subjection. The Common-

wealth is a political community, carved out of the British empire and endowed through
I its Constitution with a defined quota of self-governing powers. Those powers are
delegated by and derived from the British Parliament, and they are to be held, enjoyed,
and exercised by the people of the Commonwealth in the manner prescribed by the
grant, subject — (1) to the supreme British Sovereignty (under the Crown), and (2) to
^ the Constitution of the Commonwealth. The Commonwealth is consequently' imder a
double subjection. It is subject in the first place to the British Parliament, which, as
the ultimate sovereign authority of the Empire, has the legal power to legislate for the
Commonwealth as a part of the Empire, and even to amend or repeal the Constitution
of the Conmionwealth. The grant of a Constitution to any dependency of the Empire is,
however, a practical guarantee that no Imperial legislation conflicting with such grant
will be passed except at the express request and with the concui-rence of the dependency.

^^§ 9.11] PREAMBLK 301

On a few subjects ofspecially Imperial concern, and as to which uniformity of regula-
tion is specially important, the Imperial Parliament still occasionally legislates for all
the Queen's Dominions ; see for instance the Copyright Act, 1842 (5 and 6 Vic. c. 45) ;
parts of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60) and the Privy Council
Acts. Such legislation when expressly extended to the Colonies will be as binding on the
Parliament and people of the Commonwealth as is the Constitution itself. (See Lefroy,
Leg. Power in Canada, p. 208. ) In the second place, it is under a real subjection to the
Constitution, as a living central forc-e, continuously in action, keeping the ruling organs
of the federated community within the respective spheres mapped out by the Consti-
tution, and checking invasions and encroachments beyond the limits of those spheres.
Not only the Federal Government, but the Governments of the States, will be under the
Federal Constitution to the extent to which the Constitution limits their powers, and
to the extent to which the power of amendment may be exercised. The Constitution
will therefore be the supreme law of the land binding the people of the Commonwealth,
the Federal Parliament, and all the governing agencies and instruments of the Common-
■wealth to the extent expressedy?'

§ 10. "Hereby Established.*"

The Commonwealth is not established and the Constitution does not take effect
until the date specified in the Queen's proclamation issued under Clauses 3 and 4.
This proclamation was required to be issued within one year after the passing of the Act
of the Imperial Parliament.

Be it therefore enacted by the Queen's Most Excellent
Majesty/^ by and with the advice and consent of the Lords
Spiritual and Temporal/^ and Commons/* in this present
Parliament assembled, and by the authority of the same/^ as
follows : —

UsiTED States.— We the People of the United States, ... do ordain and establiA this
Constitution for the United States of America. [Preamble.]

Canada.— Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and
with the advice and consent of the Lords spiritual and temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, as follows : — [Preamble.]

Gbrxaxt. — His Majesty, the King of Prussia, in the name oif the North German Confederation,
His Majesty the King of Bavaria, His Majesty the King of Wurtenburg, His Royal Highness
the Grand' Duke of Baden, and His Royal Highness the Grand Duke of Hesse and by
Rhine for those parts of the Grand Duchy of Hesse which are situated south of the Main,
conclude an eternal alliance. . . This Confederation shall bear the name of the German
Empire, and shall have the following Constitution :— [Preamble.]

SwiTZEBLA.ND. — In the name of Almighty God. The Swiss Confederation, . . has adopted

the Federal Constitution following :— [Preamble.)

§ 11. " By the Queen's Most Excellent Majesty .'^

The enacting words, showing the Authority by which the Commonwealth is created,
are in the form in which Acts of Parliament have been framed from a remote period of
English historj'. According to the theory- of the Constitution the Queen is the source of

. law, the Queen makes new laws, the Queen alters or repeals old laws, subject only to
the condition that this supreme power must be exercised in Parliament and not other-

, wise. Every Act of Parliament bears on its face the stamp and evidence of its royal
authority. It springs from the Queen's Most Excellent Majesty. It is in the Crown,

j and not in Parliament, that legislative authority is, according to Constitutional theory,

I directly vested. Parliament is the body assigned by law to advise the Crown in matters
of legislation, and the Crown could not legally legislate w ithout the advice and consent
of Parliament. "It is, however, constitutionally and theoretically true that the legis-
lative function resides in Queen Victoria no less than it resided in William the
Conqueror. The conditions and limitations under which that power is exercisable have

302 COMMENTARIES ON THE CONSTITUTION. [Preamble.

indeed been profoundly modified." (Hearn's Government of England, p. 51.) Several
stages in the history of the Royal legislative function, and in the mode of its initiation
and its exercise, may be summarized : —

Legislation by thk King in Council. — In the earliest periods of English history of
which we have any authentic records, we find that both the subjects of legislation and
the mode of dealing with them rested entirely with the King and his Council of
immediate advisers and great men ; the King presiding at the Council in person, pre-
paring and presenting the matters for consideration, and sharing in the deliberations of
the Council. From time immemorial the Crown has alwaj'S been assisted by a con-
sultative or advisory body under the fluctuating names of " The Michel Synoth," or
Great Council; "The Michel Gemot," or Great Meeting; "The Witena Gemot," or
Meeting of Wise Men. In Latin it was variously styled the Commine Concilium Regni ;
the Magnum Concilium ; and the Curia Begin Magna. Long before the Norman
conquest all matters of public importance Mere debated and settled by the King in the
Great Council of the realm. (Freeman's Growth of the English Constitution, pp. 40
and 53.)

This practice seems to have been universal among the Northern nations, and par-
ticularly among the Teutonic tribes, in whose primitive institutions, as described by
Tacitus, there can be discerned the germs which afterwards expanded into the elaborate
mechanism of representative and parliamentary government. In the very earliest
accounts of these tribes we find the community generally ruled by a chief or prince with
the advice and consent of the assembled nobles and people. This system was afterwards .
carried by the Germans into all the countries of Europe which they over-ran upon the
dissolution of the Roman Empire. (Tomlin's British Law, vol. II. [Parliament] ;
Hearn's Government of England, p. 416.) So early as the reigns of Ina, King of the
West Saxons ; Offa, King of the Mercians ; Ethelbert, King of Kent, instances occur of
the meeting of such a Council "to consider the affairs of the kingdom and to advise the
king to make new lavs as well as to mend old ones."

After the union of the several realms of the Heptarchy, King Alfred ordained for
a perpetual usage, that these Coimcils should meet twice in the year, or oftener, if need
be, to treat of the government of the people ; " how they should keep themselves from
sin, should live in quiet, and should receive right." Our succeeding Saxon and Danish
monarchs frequently held councils of this sort, as appears from their respective codes of
laws ; the title whereof usually speak them to be enacted, either by the King with the
advice of his Witena-gemot, or wise men, or by these sages with advice of the King, or
lastly, by both together. There is also no doubt but that these great councils were
occasionally held under the first princes of the Norman line. Glanvil, who wrote in the
reign of Henry IL, speaking of a particular amount of an amercement in the SheriflTs
Court, says, " It had never yet been ascertained by the General Assizes or Assemblies,
but was left to the custom of particular counties." (Glanvil, b. 9, c. 10.) Here the
general assizes are spoken of as a meeting well known, and its statutes or decisions are
put in a manifest contradistinction to custom, or the common law.— Tomlin's B.L. vol.
IL (Pari).

Legislation by the King on Petition. — The " Great Council," whose concurrence
in legislation was thus required, was the historical original of the House of Lords. Long
after the sole right of the Commons to grant supplies to the Crown was established,
there was no recognition of their right to be consulted in matters of general legislation.
The "power of the purse," however, enabled them to claim legislation for the redress of
grievances ; and in 1309, early in the reign of Edward II. , we find them gianting a sub-
sidy "upon this condition, that the King should take advice and grant redress upon
certain articles, in which their grievances were set forth." Thirteen years later their
right to concur in all legislation was affirmed. The Act of 15 Edward II. (1.322) contains
a clause w hich is said to be the first formal recognition of our present legislative system,
viz., " the matters which are to be established for the estate of our Lord the King and

§§ 11-12.] PREAMBLE. 303

of His Heirs and for the estate of the realm and of the people, shall be treated, accorded
and established in Parliaments bj' our Lord the King and by the assent of prelates, earls
and barons, and the commonalty of the realm, according as it hath been heretofore
accustomed." (Taswell-Langmead, p. 269.) Almost all the Acts passed during the
reign of Edward III. (1327-1377) express in some shape the concurrence of the Lords and
of the Commons. At the same time they were the laws of the King, made by the King,
at the request of or on the petition of the people or communities of the people with the
assent of the Lords " for the common benefit of the people of the realm." (Heam's Gov.
of Eng. 54. )

Legislatiox by the King, ox Bill Presented by Parliament. — The third
period marks the transition from legislation preceded by petition, to the modem form
of legislation by Bill, presented to the Crown by Parliament. The Commons, dis-
appointed at the frequent neglect of their petitions, and equalU* aggrieved by the fretiuent
passage of laws, not according to the terms of their petitions, adopted a new expedient ;
they submitted for the Royal assent " a petition containing in itself the form of a bill."
This instrument, which contained the precise provisions that they desired, was the
identical document on which the Royal fiat was placed. No room was thus left for
fraud or misunderstanding. But an unforeseen and remarkable consequenc-e followed.
It became ditficult, if not altogether impossible, for the Crown to amend the petition
thus presented. When a request was made in so precise a form, nothing remained but
either to assent to it or to reject it as a whole. Hence, although a few exceptions occur
tn the reign of Edward IV., the practice was established, at all events before the
accession of the Tudors, that the Royal assent should be given to or withheld from the
precise advice tendered to the King by his Parliament. (Heam's Gov. of Eng. p. 59.)

§ 12. '' Of the Lords Spiritual."

One of the oldest Acts in which this expression occurs is the Statute of 4

Hen. IV. (1402), which begins -" To the honour of God and Holy Church, and for the

common wealth and profit of all the realm of England, our Lord the King, by the assent

of the Lords Spiritual and Temporal, and at the special instance and request of the

Commons, assembled at the Parliament holden at Westminster the morrow after the

feast of St. Michael, the fourth year of his reign, hath ordained and established certain

statutes and ordinances by the manner as foUoweth." (Stat. Rev. Etl., 1870, Vol. I.,

p. 272.) This form was used in all the Acts of Henry IV. It was followed in the Acts

i of Henry V., and with few exceptions it became the regular method t)f referring to the

' ecclesiastical element in the House of Lords. This reference to "Lords Spiritual "' has

[led to the impression, in the minds of a large number of writers, that they constitute

I one of three estates of the realm. That is not so. The Lords Spiritual, in reality, form

a component part of the House of Lords, which is, as a whole, only one of the estates.

Another equally incorrect assmnption, frequently met with, is that the Crown repre-

! sents one of the three estates.

The Three Estates. — Among most of the nations of Western Europe, it was in
the early and middle ages customary to consider a political community as divided into
three orders or estates. In England it was generally held during a part of that period
that the nobility, the clergy, and the commons, constituted the three states of which
the Parliamentary Assembly was composed. The Crown shared in the sovereignty with
the Parliamentary- body, but it was not an estate.

The Clergy .4.3 an Estate. — When William the Conqueror assumed the Govern-
ment of England, he changed the spiritual tenure of Frankalmoign or free alms under
which the bishops, mitred abbots, and other Spiritual Lords held their land, in Saxon
times, into feudal tenure by barony. This tenure subjected the ecclesiastical estate to
civil charges, pecuniary claims, assessments and aids from which they were before
exempt. The inferior clergy and owners of religious houses, however, continued tr.

304 COMMENTARIES ON THE CONSTITUTION. [Preamble.

hold their lands on Frankalmoign, and thus free from liability to feudal burdens and
taxation. As an incident of their right to the enjoyment of a succession to their
baronies and of their consequent liability to feudal obligations, the bishops and abbots
were summoned to attend the sittings of the King's Great Council (Magnum Concilium),
which afterwards developed into the House of Lords, and they have ever since been
allowed the privilege of membership of that order under the name, finally recognized,
of the "Lords Spiritual." The Lords Spiritual, however, never constituted an estate
or assembly of the clergy as a whole. The parochial clergy and owners of religious
houses being legally exempt from taxation, and protected by law as well as by the
sanctity of their order, the King could not tax them without their consent. An
expedient was therefore adopted for the purpose of obtaining their consent. A special
assembly, or convocation, was organized in which the mass of the clergy could be
officially represented by men of their own class, and of their own selection, charged with
the duty of deciding the manner and measure of their taxation in aid of the King's
revenue.

In the " Model Parliament " of 1295 (23 Edw. I.) the clergy were for the first time
represented as one of the three estates in a really national Legislature. In the Parlia-
mentary writ of summons served on every bishop, requiring his attendance in the King's
Great Council, he was " premonished " to cause the Dean of his Cathedral Church and
the Archdeacon of his Diocese in person, and the chapter and the parish clergy of the
Diocese, by their proctors, to attend the Parliament and there take part in the delibera-
tions of the assembly of the clergy. This command to the bishops, usually known from
its initial word as the " Premunientes Clause," was first issued in 1295 ; it was uniformlj'
issued after 1354, and it was generally obeyed by the formal election of proctors until
the Reformation (Hen. VIII. 1509-1547). (Hearn's Gov. of Eng. p. 432.)

The inferior clergy, however, though always summoned under the writ of pre-
munientes, seldom attended. They preferred to keep aloof from secular legislation, and
to tax themselves in their own Convocation. In the 14th century their attendance
ceased altogether ; though in Convocation they still formed a Legislative Council, by
whose advice and consent alone, without that of the growing Commons, Edward III.
and Richard II. passed laws, on ecclesiastical matters, to bind the laity. At last, in
1664, without any special legislative enactment, the practice of special ecclesiastical
taxation ceased, and the lower clergy merged in the general body of the Commons.
(Hallam, Middle Ages, III., 137 ; Taswell-Langmead, p .250.) Thus the clergy ceased
to be an estate of the realm, and now there are only two estates, namely, the Lords and
the Commons, forming one Parliament in which the clergy are represented in common
with the rest of the nation .

At common law the clergy were not qualified to vote at elections for the House of
Commons, nor were they qualified to be elected members of that House ; the reason
being that they were of a distinct and separate estate, and that one estate could not take
part in the political deliberations of another. By the Acts of 10 Anne c. 31, and 18
Geo. II. c. 18, clergymen who are not members of the House of Lords have been
conceded the right to vote ; and by 33 and 34 Vic. c. 91 (1870) clergymen may, by deed,
renounce their clerical capacity and become qualified for election as members of the
House of Commons and other jiublic bodies.

§ 13. "And Temporal."

The Lords Temporal consist of all the peers of the realm, by wliatever title of
nobility distinguished. Bishops are not peers ; they, with the peers, form the Lords of
Parliament or the House of Lords as an integrated legislative chamber. The origin of
this body has been traced to the Great Council [Alaynum Conciliuvi), consisting of the
nobles, tenants-in-chief, principal landowners and prelates, known before the Norman

■§§ 13-14.]

PREAMBLE. 305

conquest as " Witena-gemot," and after that event as the *' Curia BegU," which
assembled to advise the King in matters of legislation and administration. The
peerage of the present day is the descendant of the old Great Council of the King.
{Heam's Gov. of Eng. p. 144.)

The House of Lords now consists of members who hold their seats either — (1) by
hereditarj' right, (2) by the creation of the reigning sovereign, (3) by virtue of their
office, such as English Bishops, (4) by election for life, such as Irish peers, of whom
there are twenty-eight, (5) by election for the duration of a Parliament, such as the
Scotch representative peers, of whom there are sixteen. In 18.30, the number of peers
on the roll of Parliament was 401 ; in 1899, the number had increased to 591 ; about
two-thirds of the hereditary peerages at present in existence were created daring the
present century. (Statesmen's Year Book, 1900, p. 7.)

§ 14. " And Commons."

Okigin. — It would be difficult to condense into a brief note an adequate summary
of the beginnings of that great and renowned parliamentary assembly whose name is
thus officially given in the Imperial Act. The House of Commons was originally the
legislative chamber in which were represented, not the common people of England, nor
the English churls, nor .the English plebeians, as those expressions are generally under-
stood, but the various communities (Comrmmitates) of the Kingdom. Gommunitates
meant aggregations of persons residing in the same neighbourliood, entitled to the
enjoyment of common rights, subject to common duties and burdens, having common
interests ; groups of population organized and localized ; assemblages of pei"Sons liable
to the same feudal obligations, and occupying the same relation to the King. Foremost
in numerical strength among these Commnnitates were — (1) the communities of the
counties, which included the knights of the shires, formerly the lesser barons and lesser
Crown vassals ; and (2) the communities of the cities, towns and boroughs, including
the citizens and burgesses thereof. According to the theory of the Constitution, even
in the middle ages, the maxim prevailed that "what touched all should be approved by
•all ; " that no change should be made in a law affecting any class, order or community,
and certainly that no tax could be imposed, ^vithout the consent of the group of persons
immediately concerned. Hence the knights of the shires, when they became differen-
tiated from the greater barons, who were summoned in person by special writ to attend
the Magnum Concilium, began to meet, either in person or through their delegates, in
an assembly of their own, to vote aids to the Crown and petition for redress of griev-
ances. Similarly, the cities and boroughs, being called upon by the ELing to grant aids
and subsidies, sent delegates to represent them and to do their business in a gathering
■of their own.

The growth of these two middle classes, and their gradual representation for the
discharge of public functions, was at times actually encouraged by the Crown in order
to facilitate the collection of revenue or to coimterbalance the increasing influence of
the barons and prelates ; at other times the populai' tendency was supported by the
leaders of the nobility, in order to gain support in their contests against the Crown.

Election and REPKESENTATioy. — "The ideas of election and representation, both
aeparately and in combination, had been familiar to the nation, in its legal and fiscal
system, long before they were applied to the Constitution of the National Parliament.
The English Kingship was always in theory, and to a great extent in practice, elective.
The bishops and abbots were supposed to be elected by the clergy, of whom they were
the representatives. In the local courts of the hundred and the shire, the reeve and
four men attended as representatives from each township ; and the twelve assessors of
the sheriff represented the judicial opinion of the whole shire." (Taswell-Langmead,
p. 229.) It must be remembered that the national Grovernment was a mere skeleton,
whilst county government was highly organized ; so that the extension of the repre-
sentative system to the Parliament meant the centralization of popular institutions.
20

306 COMMENTARIES ON THE CONSTITUTION. [Preamble,

The Great Council was not a representative, but a constituent body. All th&
King's immediate tenants — both the greater baroris and the lesser barons, or knights —
had a right to attend. This right is expressly recognized by Magna Charta, by which
the King promised, when calling a Council for the granting of extraordinary feudal aids,
to summon all tenants-in-chief — the greater barons (lay and spiritual) individually, and
the others by writs addressed to the sherifiF. This difference in the mode of summons —
which had existed for some time previously — marks the inferior position of the lesser
barons, or knights. As a matter of fact, owing to the difficulty of attendance, their
right gradually became more formal than real ; until the Great Council became practi-
cally an assembly of the greater barons. (Taswell-Langmead, p. 226.)

The financial necessities of the Crown, however, required that the knights should
attend, in person or by deputy ; and the representative system already existing in the
counties was naturally resorted to for this purpose. The first instance of the extension
of the representative system to the National Council was at the Council of St. Albans,
in 1213, which was attended not only by the bishops and barons, but also by the reeve
and four men from each township on the royal demesne. Four instances of county
representation, by writs directing the sheriff of each county to send to the Council a
certain number of "disci'eet knights of the shire," occur before Simon de Montfort's
famous Parliament of 1265. (Taswell-Langmead, pp, 230-5.)

The knights of the shire, however, representing as they did the landed gentry, were
only a portion of the commonalty. The towns had already risen to wealth, liberty, and
importance ; and the representation of the prosperous and progressive class of burghers,
was necessary as a basis for really popular institutions.

To Simon de Montf ort, in the reign of Henry III. , belongs the glorj' of taking £u
step which led to the systematic representation of the boroughs as well as the counties.
In December, 1264, he laid the foundations of the House of Commons, by issuing writs
directing the sheriffs to return not only two knights from each shire, but also two
citizens from each city, and two burgesses from each borough. (Hearn's Govt, of Eng.,
p. 48.) This famous Parliament met at London on 20th January, 1265, to deal not
merely with the granting of supplies, but with the business of the nation generally.
(Gneist, Eng. Const., p. 270.)

At the battle of Evesham, which took place shortly afterwards, Simon de Montfort
was killed by the Royalist troops, and the party of the barons was broken up, but the
precedents established during his triumphant career were never obliterated. During
this period the county freeholders were, for the first time, associated with the mercantile
and trading communitj', in a body which was destined within less than 100 j-ears to
become organized in strength and individuality, and to assume its position as the popular
chamber in a national Parliamentary system. The precedent of 1265, although it was
not regularly followed for many years afterwards, distinctly foreshadows the dawning
outlines of the House of Commons.

There was a transition period of 30 years before Edward I.'s " Model Parliament"
in 1295, in which the three estates were represented, and which sat and voted in three
bodies — the knights sitting with the greater barons, and the clergy and burgesses sitting
separately. The last great stage in the evolution of the House of Ccminions was tlie
gradual detachment of the knights from the greater barons, their union with the
burgesses, and the consequent division of Parliament into two Houses ; the House of
Lords being the aristocratic and official chamber, and the House of Commons the repre-
sentative chamber, consisting, as it does to this dny, of representatives of the shires and
representatives of the boroughs. The exact date of this development is uncertain, but
it was certainly complete in the year 1347. (Taswell-Langmead, p. 262.) During the
long reign of Edward III. (1327-77) the power of the Commons was consolidated, and
they succeeded in establishing the three great principles that taxation without the
conseftit of Parliament is illegal, that the concurrence of both Houses i.s necessary for

§ 14.]

PREAMBLE. 30'

legislation, and that the Commons have a right to inquire into abuses of administration.
Two events, in particular, occurred which marked the complete consolidation of the once
separate communities, b\^ their representation in a united House, as well as by the
assimilation and unity of the taxpayers in the counties, cities, and towns ; one was in
51 Edw. III. (1378), the appointment of a permanent Speaker, Sir Thomas Hungerford ;
and the other was the imposition of a poll-tax on every adult person in the kingdom,
except beggars. (Hearn's Gov. of Eng. 432 ; Gneist, Eng. Pari., 171.)

The Statute of Gloitcester. — The Act 9 Hen. IV. (1407) contains the first
authoritative recognition and delimitation of the several functions of the King, Lords
and Commons, and establishes the principle that the parliamentary bodies may deliberate
apart from the King. " It shall be lawful for the Lords to treat among themselves, in
the absence of the King, respecting the state of the Realm, and about the necessary
means to help. And in like manner it shall be lawful for the Commons to advise among
themselves in respect of the before-mentioned state, and means, &;c. Saving alwaj's that
the Lords, on their part, shall not report to the King anj^ matter resolved on by the
Commons, and assented to by the Lords, before the Lords and Commons have come to
one opinion and concurrence in such matter, and then in the wonted way and form, to
wit, through the mouth of the Speaker." (Gneist, Eng. Pari., p. 172.)

Qualification of Electors. — Laws relating to the qualification of electors are first
met with during the reigns of Henry IV. and Henry VI. At first the deputies from the
counties were nominated or appointed at general public meetings, held in connection
with the County Courts, presided over and conducted by sheriffs, appointed by the
King, and attended by all free men, or at least all freeholders. Proposals were put to
these gatherings and carried by the assent and acclamation of those present, "termed
the bystanders." This custom is said to have been a survival of the ancient method of
doing public business, followed in those antique German assemblies described by Tacitus,
in which the people of the community expressed bj' "acclamation" their approval of
propositions submitted by their leaders. There is historical evidence that during the
reigns of Edward I. and Edward II. all the freeholders of the counties, without regard
to the tenure or value of their lands, were accustomed to vote at such meetings. The
writs were directed to the sheriffs to hold the elections in " full county," when all the
freeholders were in duty^ bound to attend.

By 7 Hen. IV. c. 15 (1405), a uniform and general franchise for the county was
distinctly recognised ; "all persons present at the County Court, as well as suitors duly
summoned for any cause or otherwise," were required to attend to take part in a choice
of members, and to contribute towards the wages of the chosen representatives, fixed at
48. per day.

The first contraction of the county franchise is found in 8 Hen. VI. c. 7 (1429),
which provided "that in future only freeholders of 40s. income shall take part in the
elections." Shortly afterwards, bj- 10 Hen. VI. c. 2. it was provided that only 40s. free-
holders " within the county " should be entitled to vote at county elections. By 23 Hen.
VI. c. 14, it was enacted " that only notable knights and notable esquires and gentlemen
of the count}- are to be elected, who might become knights (consequently possessed of
£20 income from land), but not any j-eomen thereunder." The reasons for these restric-
tive laws were thus stated in one of the above statutes : " that elections of the delegates
have of late been made from among too large a number of people living in the same county,
most of them having small fortunes, but fancying that each had the like right to vote as
the knights and esquires, which may easily occasion murder and rebellion, strife and dis-
pute, between the gentlemen and the rest of the people, if measures be not speedily
taken to improve this state of things." (Gneist, Eng. Pari., p. 176.)

Those limitations in the county franchise lasted down to the Reform Act 2 and 3 Wm.
IV. c. 45 (1832). With respect to the franchise for cities, towns, and boroughs, some
diflFerence of opinion exists, and the subject is somewhat obscured bj- the absence of

308 COMMENTARIES ON THE CONSTITUTION. [Preamble.

definite legislative provisions. The right to take part in elections in these communities
seems to have depended upon charters, writs, customs, and municipal constitutions, in
force in the respective places vi^hich had the right of returning members. It is believed
bj' competent authorities that the old members for cities, towns, and boroughs were
chosen by the free inhabitants and householders of those localities who were liable to
borough rates (scot and lot). On the other hand f^ord Holt was of opinion that only
those were burgesses who held that description of freehold known as "burgage tenure,"
the original tenure under which freeholds in town, ' ' formerly parts of the ancient
demesne of the Crown," were held ; under this system the right of voting was annexed
to some existing tenement or house or to some spot of ground upon which a house had
stood in ancient times. But it seems that, whatever was the original qualification, the
control of elections in cities and towns eventually fell into the hands of Municipal
Corporations, or wealthy landowners ; hence the origin of so-called ' ' rotten
boroughs." The question as to who were, or ought to be, electors in boroughs,
frequently became the subject of debates in the House of Commons. In 22 Ja. I. a
resolution was passed to the effect that, where there was no charter or custom to the
contrary, the election in boroughs was to be made by all the householders, and not by
the freeholders only. The defects, abuses and anomalies were not attacked until most
of them were swept away by the Reform Act, 1832.

By the Reform Act, 1832 (2 and 3 Wm. IV. c. 45), important changes were made,
both in the qualifications of electors and in the delimitation of constituencies. " The
number of English county constituencies was increased from 52 to 82 ; 66 boroughs,
containing a population of less than 2,000 each, were totally disfranchised, and 31 other
boroughs, of less than 4,000 each, were required to send one representative instead of
two. On the other hand, 22 new boroughs acquired the right to return two members,
and 24 to return one member. In Scotland the town members were increased from 13 to
23 — making 53 in all ; while the Irish representatives were increased from 100 to 103.
The next great change in the constituency of the House of Commons was made by the
Reform Act of 1867-68 (30 and 31 Vic. o. 102). By this Act England and Wales were
allotted 493 members, and Scotland 60, while the number for Ireland remained unaltered,
and household suffrage was conferred on boroughs in England and Scotland. A still
greater reform was efi'ected by the Representation of the People Act, 1884 (48 A^ic.
c. 3), and the Redistribution of Seats Act, 1885 (48 and 49 Vic. c. 23). The former
introduced a ' service franchise,' extending to householders and lodgers in counties the
suffrages which in 1867 had been conferred upon householders and lodgers in boroughs,
and placed the three Kingdoms on a footing of equality as regards electoral qualifica-
tions ; while the latter made a new division of the United Kingdom into county and
borough constituencies, and raised the total number of members to 670, England
receiving 6 new members, and Scotland 12." (Statesmen's Year Book, 1900, p. 7.)

§ 15. " And by the Authority of the Same."

These words clearly show that, although on the face of the Act the Queen figures as
the chief legislator, the AuctoritaH by which the Constitution has been created is blended
and conjoined in the Queen in Parliament. This is the modern practice in connection
with the political organization of colonies and in the grant to them of the institutions of
self-government. In the early stages of English and British colonization, the Crown,
without parliamentary sanction, expressed or implied, but in the exercise of its
admitted prerogative, was accustomed to grant to newly settled, ceded, or conquered
provinces. Patents and Charters, containing directly or indirectly authority to establish
local Legislative Assemblies endowed with the power to pass laws for the peace, ortler
and good government of such countries : —

"On obtaining a country, or colony, the Crown has sometimes thought fit, by par-
ticular express provisions under the Great Seal, to create and form the several parts of
the Constitution of a new Government ; and at other times has only granted general

§15.]

PREAMBLE. 309

powers to the Governor to frame such a Constitution, as he should think fit, with the
advice of a Council, consisting of a certain number of the most competent inhabitants,
subject to the approbation or disallowance of the Crown. In most instances there are
three departments forming the colonial government, each of which deserves attention.
1st. The governor, who derives power from, and is substantially a mere servant or
deputy of, the Crown, appointed by commission under the Great Seal. The criterion
for his rules of conduct are the king's instructions, under the sign -manual. 2nd. The
colonial councils, which derive their authority, both executive and legislative, from the
king's instructions to the governor. 3rd. The representative assemblies chosen by
certain classes of the colonial inhabitants. The right of granting this assembly is
vested exclusively in the Cro\vn, subject to after regulations by the local legislatures."
(Petersdorff, Vol. v. p. 543.)

The constitutional right of the Crown, in exercise of its prerogatives, to grant
Constitutions to colonies, has been recognized in a series of judicial decisions, some of
which may be here cited in iUustration of the system that once prevailed, under which
the English, and afterwards the British, Parliament enjoyed no share in the organization
and management of colonial settlements. The case of Kielley v. Carson (1842), 4 Moore's
Privy Council 63, 7 Jurist 137, turned on the nature and constitution of the House of
Assembly of Newfoundland, established in 1832 by ^^^tue of a commission under the
sign-manual of King William IV., appointing Sir Thomas Cochrane Governor of the
colony, and authorizing him to convoke a Legislative Assembly ; and on the question
whether such Assembly had been granted power, or possessed inherent power, to commit
a pei-son to gaol for contempt, in attempting to interfere with one of its members out of
doors. Baron Parke (Lord Wensleydale), delivering the judgment of the Judicial Com-
mittee, said : —

"To such a colony there is no doubt that the settlers from the mother- country
carried with them such portion of its common and statute law as was applicable to their
new situation, and also the rights and immunities of British subjects. Their descendants
have on the one hand the same laws and the same rights, unless they have been altered
by Parliament ; and, on the other hand, the Crown passesses the same prerogative and
the same powers of government that it does over its other subjects ; nor has it been dis-
puted in the argument before us. and therefore we consider it as conceded, that the
sovereign had not merely the right of appointing such magistrates and establishing such
corporations and courts of justice as he might do by the common law at home, but also
that of creating a local Legislative Assembly, with authority subordinate to that of
Parliament, but supreme within the limits of the colony, for the government of its
inhabitants. This latter power was exercised by the Crown in favour of the inliabitants
of Newfoundland in the year 1832, by a commission under the Great Seal, with accom-
panying instructions from the Secretary of State for the Colonial Department ; and the
whole question resolves itself into this, whether this power of adjudication upon and
committing for a contempt was by virtue of the commission and the instructions legally
given to the new Legislative Assembly of Newfoundland ; for, under these alone can it
have any existence, there heing no usage or custom to support the exercise of any power
whatever. In order to determine that question, we must first consider whether the
Crown did in this case invest the local legislature with such privilege. If it did, a
further question would arise, whether it had a power to do so by law If that power
was incident as an essential attribute to a Legislative Assembly of a dependency of the
British Crown, the concession on both sides, that the Crown had a right to establish
such an assembly, puts an end to the case. But if it is not a legal incident, then it was
not conferred on the Colonial Assembly unless the Crown had authority to give such a
power, and actually did give it. Their Lordships give no opinion upon the important
question whether, in a settled country such as Newfoundland, the Crown could, by its
prerogative, besides creating the Legislative Assembly, expressly bestow upon it an
authority not incidental to it of committing for a contempt, an authority materially
interfering with the liberty of the subject, and much liable to abuse. They do not enter
upon that question, because they are of opinion, upon the construction of the commission,
and of its accompanying document, that no such authority was meant to be commuru-
cated to the Legislative Assembly of Newfoundland ; and if it did not pass as an incident
by the creation of such a body, it was not granted at all." (7 Jurist, p. 139.)

In the case of Phillips v. Eyre (1870), L.R. 6 Q.B., p. I, the plaintifi" sued a former
Governor of Jamaica to recover damages for assault and false imprisonment, alleged to
have been directed h\ the defendant after the proclamation of martial law during the

310 COMMENTARIES ON THE CONSTITUTION. [Preamble.

suppression of rebellion in the Island. The defendant pleaded an indemnity, under an
Act passed by the Legislature of Jamaica, and assented to by himself on behalf of the
Crown, after the rebellion was over, legalizing every act done by the Governor in arrest-
ing the rebellion by force of arms. The Legislature of Jamaica, at that time, consisted
of a Legislative Council and Legislative Assembly, established not by an Imperial Act,
but by a Commission under the Great Seal accompanied by royal instructions. The
•case turned on the power of the Crown to create such a Legislature in a settled colony.
In delivering the judgment of the Court of Appeal, Mr. Justice Willes said : —

" Doubts were suggested in this Court upon what was taken for granted in the argu-
ment and judgment in the Court below, namel3', th6 power of the Crown to create a
Legislative Assembly in a settled colony. Assuming, but by no means affirming that,
as contended for by counsel for the plaintiff, the colony in question, though originall}'
conquered from the Spaniards, is now to be deemed a settled as distinguished from a con-
quered or ceded one, we consider these doubts as to the power of the Crown and of the
local Legislature to be unfounded. There is even greater reason for holding sacred the
prerogative of the Crown to constitute a local Legislature in the case of a settled colony,
where the inhabitants are entitled to be governed by English law, than in that of a
conquered colony, where it is only by grace of the Crown that the privilege of self-
government is allowed ; though where once allowed it cannot be recalled. In colonies
distant from the mother country to which writs to return members to the Imperial
Parliament do not run, it is essential, both for the due government of the coinitry in
dealing with matters best understood upon the spot, and with emergencies which do not
admit of delay, and also for giving subjects there resident the benefit of a voice, by
their representatives, in the councils by which they are taxed and governed, that the
-Crown should have the power of creating a local Parliament. Accordingly', it is certain
that the Crown has, in numerous instances, granted charters under which Houses of
Assembly and Legislative Councils have been established for the gov^ernment of colonies,
-whether conquered or settled, and that such Councils and Assemblies have, from time
to time, made laws suited to the 'emergencies of the colony,' which, of course, include
all measures necessary for the conservation of peace, order, and allegiance therein. In
effect, the inhabitants have been allowed to reserve the power of self-government,
through their representatives in the colony subject to the approval of the Crown and
the control of the Imperial Legislature. This opinion was reflected upon in the
argument, but it is in accordance witii just principles of government, with the law laid
down by the text-writers, including Mr. Justice Blackstone ; and it has now been drawn
into doubt for the first time. We are satisfied that it is sound law, and that a con-
firmed act of the local Legislature lawfully constituted, whether in a settled or
conquered colony, has, as to matters within its competence and the limits of its juris-
diction, the operation and force of sovereign legislation, though subject to be controlled
by the Imperial Parliament." (Per Willes, J., Phillips v. Eyre, L.R., 1 Q.B., p. 1.)

" The first important deviation from this rule was in the case of the colony of
Quebec, which by statute of 1774 received an improved form of local government. The
precedent was followed, in the year 1791, by Mr, Pitt's famous Canada Act, which
constituted the two provinces of Quebec and Ontario. It has been declared by high
authority that the reason for the introduction of Parliamentary action into the govern-
ment of Canada was the desire to concede to the Roman Catholic colonists certain rights
inconsistent with the severe Conformity statutes then existing, and with which tlie
Crown had no power to dispense. But the application of the principle about tiie same
time to the government of India, and, soon after, to Australian affairs, make it more
probable that the change was really due to the growing extensions of Parliamentary
influence over all departments of State. Be this as it may, the practice of the present
century has been, whilst leaving to conquered acquisitions as nuich as possible their
previous forms of government, to confer local Constitutions by Act of Parliament upon
possessions acquired by settlement The covirse of proceeding has been fairly uniform.
First, there has been a purely despotic government, when the colony has been ruled as a
military position by a Governor and a handful of officials appointed by the Home
Government. Then there has been a Constitution, with a Legislative Council, partly
-appointed b}'^ the Governor and partly elective. Of tliis Council the Crown officials
have always formed part, but the executive has been unassailable by the Legislr.ture,
and responsible only to the Colonial Office ; possessions in these two stages being
technically known as ' Crown Colonies.' In the third stage, there have generally been
two Houses of Legislature, both elective, or one elective and one nominee, and tiie
executive has consisted of officials chosen for their Parliamentarj' position, and liable to
Uismissal, like ministers in England, in consequence of an adverse vote of Legislature.
This is the era of ' Responsible Government.' " (Jenks' Gov. of Victoria, pp. 10-11)

§§15-17] COVERING CLAUSES. 311

Short Title.

1. This Act^*^ may be cited as the Commonwealth^^ of
AustraHa Constitution^^ Act.

Historical Note. — Clause 1 of the draft Bill framed by the Sydney CJonvention of
1S91, and usually known as "The Commonwealth Bill of 1891," declared that "This
Act shall be cited as The Constitution of the Commonwealth of Australia." In Com-
mittee, Mr. James Munro proposed "Federated States" in lieu of "Commonwealth."
On a division, however, " Commonwealth " was retained b\' 26 votes to 13. (Conv.
Deb.. Syd. [1891], pp. 550-7.)

At the Adelaide Session of the Convention of 1S97, the clause as framed in 1891 was
adopted verbatim. In Committee, Mr. Symon proposed to omit the words " Common-
wealth of," leaving simply "Australia ;" but this was negatived. Mr. Walker proposed
to substitute " Australasia " for "Australia," but this also was negatived. (Conv. Deb.,
Adel. , pp. 616-9.) At the Sydney Session, a suggestion by the Legislative Coimcil of
New South Wales, to substitute "Dominion" for "Commonwealth" was negatived.
An amendment by Mr. Barton, to omit " The Constitution of the Commonwealth of
Australia," and substitute " The Commonwealth of Australia Constitution Act," was
agreed to, in order to distinguish between the Act as a whole and the Constitution
embodied in the Act. (Conv, Deb., Syd. [1897], pp. 224-5.)

§ 16. " This Act."

OcTLiNES OF THE AcT. — This Act, to constitute the Commonwealth, consists of nine
clauses, to each of which is annexed a marginal note. The marginal notes, as already
observed, do not form parts of the Act ; they are provided merely as brief summaries.
In these commentaries, the notes, printed, in the authorized edition of the Act, at the
sides or against the Clauses and Sections, will be found placed at the head of or imme-
diately over each Clause or Section. Clause 1 gives the short title of the Act ; Clause
2 declares that it binds the Crown and extends to the Queen's successors ; Clause 3
provides that the Queen may issue a proclamation appointing a day when the people of
the federating colonies shall be united in a Federal Commonwealth ; Clause 4 specifies
when the Commonwealth is to be deemed legally established ; Clause 5 provides for
the legal operation of the Act and of the laws of the Commonwealth ; Clause 6
defines "Commonwealth," "States, ' and "Original State ;" Clause 7 repeals the Federal
Council Act, 1^85; Clause 8 applies the "Colonial Boundaries Act, 1895," to the
Oommonwealth ; Clause 9 contains the Constitution of the Commonwealth.

;5 17. " Commonwealth."

SiGxiFiCAXCE Of THE Term. — The term "Commonwealth," to designate the
Australian colonies, lonited in a Federal Constitution, was first proposed by the Consti-
tutional Committee of the Federal Convention held in Sydney in 1891. The suggestion
emanated from Sir Henry Parkes, then Premier of Xew South Wales, and the convener
of the Convention, in which it was eventually adopted, on a division, by a substantial
majority of votes. The same name was accepted by the Federal Convention of 1S97-S.
In both Conventions other names were submitted for consideration, such as " United
Australia," "Federated Australia," "The Australian Dominion," "The Federated
otates of Australia," &c. , but the name Commonwealth was generally accepted, the only
objections raised to it being that it was suggestive of republicanism, owing to its associa-
tion with the Commonwealth of England, under Oliver Cromwell's Protectorate.

According to the derivation of the term from "common" and "weal," or
wealth " it signified common well-being or common good. From that radical connota-
tion it came to mean the body politic, or the whole people of a state. Then it became

312 COMMENTARIES ON THE CONSTITUTION. [Cl. l.

synonymous with state, realm, community, republic, nation ; whilst some authorities
have described it as synonymous with league, alliance, coalition, confederacy, and con-
federation. Webster says " a Commonwealth is a State consisting of a certain number
of men united by compact, or tacit agreement under one form of government and one
system of laws. It is applied more appropriately to governments which are considered
free or popular, but rarely or improperly to absolute governments. Strictly, it means
a government in which the general welfare is regarded rather than the welfare of any
particular class.' (Webster's Internat. Dictionary.) In this Act the word is used ti'
describe the new political community created by the union of the people and of the
colonies of Australia. Although it is capable of conveying the idea of a nation, like the
American Commonwealth, it does not, in its application to Australia, aspire to convey
that meaning except in a restricted and potential sense. At the same time it is dis-
tinctly intended to signify that the newlj^- organized political society, forming a
conspicuously integral part of the British empire, is entitled to a more dignified status
and recognition in the international arena than that assigned to the most distinguished
of the colonies or to the most powerful of the provinces out of which it has been con-
structed.

Numerous passages occur in the works of Shakespeare and one in the New Testa-
ment illustrative of the early use of the word in the general sense of a state or
community, irrespective of any special form of government, monarchical or republican.
Thus we find : —

JjESSiCA . . and he saj's, you are no good member of the commonwealth. —

" Merchant of Venice," Act III. Sc. V.
Princess. — Here comes a member of the commonwealth. — " Love's Labour Lost,"

Act IV. Sc. I.
SICINIUS. — Your Coriolanus, sir, is not much missed,

But with his friends : the commonwealth doth stand
And so would do were he more angry at it. — "Coriolanus," Act IV.
Sc. VI.
Akchb. — Let us on.

And publish the occasion of our arms,

The commonwealth is sick of their own choice. — "King Henry IV."
(Fart IL), Act I. Sc. IIL
Cant. — Hear him debate of commonwealth affairs.

You would say it hath been all in all his study. — "King Henry V.,'
Act I. Sc. I.
King Henry.— Uncles of Gloster and of Winchester

The special watchmen of our English weal. — " King Henry VI."
(PartL), Act IIL Sc. L
King Henry. — Believe me, lords, my tender years can tell
Civil dissension is a viperous worm,
That gnaws the bowels of the commonwealth. — Idem,
3ed Serv. — And ere that we will suffer such a prince.
So kind a father of the common-weal,
To be disgraced by an inkhorn mate.
We, and our wives and children, all will fight,
And have our bodies slaughtered by the foe. — Idem.
Apem. — If thou couldst please me with speaking to me, thou mightest have hit
upon it here : the Commonwealth of Athens is become a forest
of beasts. — " Timon of Athens," Act IV. Sc. III.
That at that time ye were without Christ, being aliens from the commonwealth
of Israel, and strangers from the covenants of promise, having no
hope, and without God in the world. — Eph. ii, xii.

The word commonwealth was used and applied in the same general sense by
numerous other English writers in the 16th and 17th centuries. Lord Bacon, in hw
classical essay on the " Advancement of Learning " (1597), used the word in the sense
in which it was employed by Shakespeare: — "And therefore Aristotle noteth well,

§17.]

COVERING CLAUSES. 31 a

* that the nature of every thing is best seen in his smallest portions' And for that
cause he inquireth the nature of a commonwealth, first in the family, and the simple
conjugations of man and wife, parent and child, master and servant, which are in every
cottage. Even so likewise the nature of this great citj* of the world, and the policj'
thereof, must be first sought in mean concordances and small portions." (Bacon's
Moral and Historical Works [Ward, Lock, and Co.], p. 57.) " Notwithstanding, for the
more public part of government, which is laws, I think good to note only one deficience :
which is, that all those which have written of laws, have written either as philosophers,
or as lawyers, and none as statesmen. As for the philosophers, they make imaginary
laws for imaginary commonwealths, and their discourses are as the stars which give little
light, because they are so high." (Id., p. 147.) In Rawley's original preface to Bacon's
unfinished work, " The New Atlantis," it is stated " His lordship thought also in this
present fable to have composed a frame of laws, or the best state, or mould of a common-
wealth." (Ward, Lock, and Co.'s Edition, p. 297)

During the same period the kings and queens of England frequently used the word
in their addresses to Parliament. James I. described himself as " the great servant of
the Commonwealth." (G. B. Barton's Notes to the Draft Bill, 1891 )

The term commonwealth came into special prominence during the revolutionary
period of English history, between the execution of Charles I. in 1649 and the Restora-
tion of 1660. On 19th March, 1649, Oliver Cromwell's Parliament established a
republican form of government, in the following Ordinance : — " Be it declared and
enacted by this Parliament and by the authority of the same that the people of England,
and of all the dominions and territories thereunto belonging, are and shall be and are
hereby constituted, made, established, and confirmed to be a Commonwealth or Free
State, and shall from henceforth be governed as a Commonwealth and a Free State by
the supreme authority of this nation, the representatives of the people in parliament,
and by such as they shall constitute officers and ministers under them for the good of
the people and without any king or House of Lords." Even during the existence of
Cromwell's Protectorate, philosophical writers continued to use the expression in its
primary general sense ; thus Hobbes in his "Leviathan," published in 1651, wrote : —
"And because the sovereignty is either in one man, or in an assembly of more than one,
it is manifest there can be but three kinds of Commonwealth. When the represen-
tatives of the people is one man, then is the Commonwealth a monarchy ; when an
assembly of all that will come together, then it is a democracy, or popular Common-
wealth ; when an assembly of a part only, then it is called an aristocracy." (Molesworth's
Ed. of Hobbes' Works, Vol. III., p. 171.)

John Harrington, in his treatise on Political Government, entitled "The Common-
wealth of Oceana," and dedicated to the Lord Protector, used the term as an appropriate
description of an Ideal State, not necessarily a republic. After Oliver Cromwell's death,
John Milton, seeing that his system of Government was likely to be imperilled by the
weak administration of Richard Cromwell, and belie\nng that his advice might arrest
the threatened reaction towards monarchy, published, in the early part of 1660, several
treatises, including one on " A Ready and Easy Way to Establish a Free Common-
wealth," in which he employed the word in a republican sense. "A Free Common-
wealth, without single person or House of Lords, is by far the best government, if it can
be had. Now is the opportunity, now the very season, wherein we may obtain a free
Commonwealth, and establish it for ever in the land, without difficulty or much delay."
(Cited Barton's Notes to the Draft Bill, 1891, p. 11.) "But the inevitable 29th May, 1660,
came and Charles II. was restored." (Milton's Works, Gall and Inglis' Ed., p. 12.)

After the Restoration, the term commonwealth became for a time unpalatable to^
the bulk of English society, as it was supposed to imply a republican form of govern-
ment. In his work on Civil Government, published after the Restoration, John Locke,

COMMENTARIES ON THE CONSTITUTION.

[CI. 1.

the philosopher, ignored the association of the word with Cromwell's republic and used]
it in its primitive sense as understood by Shakespeare, Bacon, Hobbes, and Harrington.
" By the same Act, therefore, wliereby any one unites his person, which was beforej
free, to any Commonwealth, by the same he unites his possessions, which were before^
free, to it also ; and they become, both of person and possessions, subject to the govern-J
ment and dominion of that Commonwealth, as long as it hath a being." (Cited Barton'aj
Notes on the Draft Bill, 1891, p. 10.)

The name Commonwealth has since been frequently applied to the States of thel
American union. The Constitution of the State of Pennsylvania (1776) framed in popular]
Convention, begins thus : — " We the Representatives of the free men of Pennsylvania
. . . do . . . ordain, declare, and establish the following declaration of rightsl
and frame of government to be the Constitution of thin Commonwealth." The preamblesj
of the Constitutions of the States of Vermont (1779) and Massachusetts (1780) are in the
same form. Dr. Burgess, in his important work on " Political Science and Constitutional
Law," published 1890, habitually describes the so-called American "States"
*' commonwealths," and he similarly designates the so-called German "states" (Vol. I.,|
pp. 201-10). On the other hand, some writers have used the name as applicable to and]
descriptive of the United States as a union of States. Dr. Bryce's well-known work on
the American Constitution is entitled the "American Commonwealth," and in one
passage he describes the union as "a Commonwealth of Commonwealths." (BryceJ
American Commonwealth, 1st ed,, Vol. I., p. 12.)

18. " Constitution."

Definition. — A Constitution is a general law for the government of a politic
community, unamendable and unrepealable, except in the manner and on complianc
with the conditions prescribed by the authority which created it. It deals with the
sovereign power of Government and the various forms, organs, and agencies through
which that power is brought into action and the relations, interdependence, andl
co-operation of those forms, organs, and agencies, in the performance of the work oj^
government.

A General Law. — First, then, a Constitution is a general law or a collection of
laws, capable of effective enforcement and binding on every member of the communityJ
including the membei s of the Government in their private capacities. It is a law whicb
should be couched in wide and general terms, avoiding minute specifications and detail
and thus leaving room for "unpredictable emergencies," and possible and desirable
developments. In the history of a Constitution there grow in association with it, andl
springing from its generalities, certain customs and practices, which cannot be exactlj
termed laws, strictly so called. These customs and practices generally relate to matter
which, by the letter of the Constitution, are left to the discretion of some member ot
branch of the sovereign body. In time, owing to political influences and consideration
these discretionary powers are exercised in a certain manner ; and hence arise what have
been described as the " understandings and conventions" of the Constitution, distin^j
guishable from the positive law of the Constitution. The essence of a law is its capacitj
of being executed ; it implies the existence of a force able to command obedience and
punish disobedience. As such, a law is clearly contrasted with a mere understAndir
or a practice, which is capable of variation and modification, according to the changii
conditions and requirements of human society. A Constitution is also different from
social compact between tlie members of the society which it concerns ; if it were a met
compact it could be repudiated and violated at the caprice of any faction or group
within the society. It differs equally from a treaty or league between separate and
independent states, terminable at the will of any of those states.

§ 18.] COVERING CLAUSES. 315

GovEKNMEXT. — Secondly, the law of the Constitution relates to the exercise of that
sovereign power of Government which in everj' independent political community,
occupying a defined territorj', is vested either in a sovereign monarch or in a sovereign
body, and which in a subordinate political community exercising delegated sovereign
powers is vested in subordinate persons or botlies (see § 21, *' Sovereignty "). Even an
absolute monarch must ordinarily exercise his sovereign prerogatives according to certain
well-understood rules and formal requisites, recognized by his predecessors and recom-
mended by his counsellors. These rules and formalities, if compiled and classified,
would compose the rudimentary " understandings and conventions " of a monarchical
constitution. When the functions of government are divided among the members of a
body, there must be some more specific rules appropriating certain classes of work to
particular members of the governing body, determining the mode of appointment and
succession of those members — such as Chief Magistrate, Legislators, and Judges — and
the manner in which harmonious action may be maintained in the combined execution
of the sovereign power. These rules would, if compiled and similarly classified, compose
A more complex constitution, and so the greater the division, sub-division, and multi-
plication of governing agencies, and the greater the distribution of power, the more
complex and elaborate a constitution becomes. Supreme governing power, as well as
subordinate or delegated governing power, analyzed and classified, may be resolved into
three departments or divisions — (1) The making and promulgation of laws prescribing
the functions of governing agencies and regulating the legal rights and duties of the
people within the jurisdiction of the government ; (2) the administration of laws ; and
(3) the interpretation and determination of laws in cases where doubts arise as to their
meaning or intention. In simple societies these three functions may be blended in one
person, or one body, but in all maturely developed States they become differentiated,
and divided amongst separate persons or separate bodies composing the sovereign
authority as a whole. Hence arises the well-known tripartite division of government
into the Legislative Department, the Executive Department, and the Judiciary Depart-
ment. All constitutions which have been reduceil to and expressed in the shape of
written instruments, such as those of the United States, Belgium, France, Germany, and
Switzerland, recognize this principle of division and distribution of power. The same
distribution, indeed, is also observed in the Kritish system of government, the Consti-
tution of which, although it has not been reduced to the form of a single document
or Act of Parliament, is as capable of being gathered from numerous Charters, Bills,
Proclamations, Statutes, legal decisions, and official documents, extending from the
time of King Alfred down to the reign of Queen Victoria, as the Constitutions of the
countries referred tO; which have been, in fact, largely constructed according to the
British model.

At the time when the American Constitution was framed, Montesquieu was the
great oracle of political philosophy, and he drew special attention to the tripartite
livision of political power as existing in England. " Contrasting the private as well as
he public liberties of Englishmen with the despotism of continental Europe, he took
the Constitution of England as his model, and ascribed its merits to the division of
egislative, executive, and judicial functions, which he discovered in it, and to the
system of cheeks and balances whereby its ec|uilibrium seemed to be preserved ; no
general principle, of politics laid such a hold on the constitution-makers and statesmen
)f America as the dogma that the separation of these three functions is essential to
reedora." (Brjce's Amer. Comm., vol. I., p. 26.) This tripartite classification does not
necessarily imply that each of the three departments of government is independent of
he others. Each of the three is endowed with a defined share in the work of govem-
nent, but they are all parts of one governing machine and are exercising fractions of the
^ogf^gS'te of sovereign power ; each acts within its respective legal sphere, but, to some
!Xtent, one may check and balance the other. Thus the legislature may exercise more
>r less control over the Executive. The Executive may advise, lead, or for a time

316 COMMENTARIES ON THE CONSTITUTION. [CL

moderate the action of the legislature, as is done in the British system, through
the agency of the Cabinet. In every well-designed Constitution the Judiciary,
once appointed, is almost absolutely independent of the influence of either the
Executive or the Legislature ; but the primary appointment of the Judges generally
rests with the Executive, and for gross misconduct in office they may be removed by the
Executive : in some Constitutions they may be removed by the Executive at the request
of the Legislature without any particular cause assigned.

KiGUTS, Privilkbes, and Immdnities. — A Constitution not only deals with this,
partition and dehmitation of governing powers, with the mode in which those powers
are exercised, and with the structure of the governing organs ; it generally enumerates
certain cardinal rules, principles, and maxims which are intended to be the indiciae of
public policy that should guide or bind the Executive the Legislature, and the Judiciary
Departments. Thus Magna Charta, the Petition of Rights, and the Bill of Rights,
contain declarations of rights, privileges, and immunities, which are said to be the
inalienable birthright and heritage of every British subject, protecting his liberty from
unlawful impairment and his property from spoliation. These declarations undoubtedly
bind the British Executive and the British Judiciary ; they may guide but cannot bind
the British Parliament, which may amend or repeal them at an}^ time. A similar
declaration of rights has been inserted in the Federal Constitution of the United States.
In a supreme constitution of a federal character, dealing as it does with a general govern-
ment and with provincial governments, with States as well as with individuals, provisions,
are necessarily inserted for the preservation not only of individual rights, but of what are
known as " State Rights," against invasion and encroachment on the part of the general
government, and for the preservation of "National Rights" against invasion and
encroachment on the part of the States. In the American Constitution, as in the
Constitution of the Commonwealth, these declarations bind alike the Executive, the
Judiciary, and the Legislature, of each State, as well as those of the general government.

A Fundamental Law. — Next, the word Constitution connotes the idea of a
fundamental law— a law of higher sanctity, and perhaps of greater efficacy and authority,
than ordinary legislation. In all modern written Constitutions there is a tendency to-
establish the fundamental character of the instrument upon a firm legal basis by making
the process of constitutional amendment more difficult and more complex than the
process of ordinarj- legislation, and tlius to affirm the principle that every alteration in
the fundamental law is an act so solemn and momentous that it requires compliance with
special formalities intended to prevent hasty and ill-advised changes, to ensure the
fullest deliberation, to guard against surprises, and to protect the rights and interests of
all classes of the community. A Constitution which thus makes the process of its own
amendment more difficult than the process of ordinary legislation is what Professor
Dicey . calls a " rigid " Constitution. The degree of rigidity may vary widely ; it may
consist in the requirement of unusual majorities in the Legislature, or of ratification in
a certain way by conventions, or by the electors, or it may involve other and mon
complicated processes. And even in an absolutely flexible Constitution such as that ol
Great Britain, where the most fundamental law can legally be altered or repealed as
easily as the most trivial, the reverence for constitutional usage invests the laws which
form the main fabric of the Constitution with a sanctity which makes the flexibility less
absolute, in practice, than it seems.

In a unitarian or consolidated Constitution, like that of Great Britain, organic
changes may be efiected with greater facility and safety than in a federal Constitution
such as that of the United States. In a consolidated State there may therefore be one
supreme Legislature, having absolute and final jurisdiction over all matters, inchuling
the Constitution itself. But a federal Constitution deals with the conflicting views and
interests of a community which is composed of a number of States, imited under
a general form of Government, each State having a local Constitution and local governing

§18.]

COVERING CLAUSES. 317

organs, as well as local rights guaranteed by the supreme Constitution. In such a
system a power of amendment is usually placed not in the legislatures of the several
States nor solely in the central legislature of the federal community, but in some body,
more or less complex, which represents both the nation and the States.

In the case of the British Constitution, and its unitarian form of government, the
British Parliament is a supreme or sovereign legislature, and could, at any time, amend
or repeal any part of the Constitution, of which it is parth', if not wholly, the author and
creator, including the Bill of Rights. The Federal Congress of the United States,
however, is not a supreme or sovereign legislature, but is only a legislature subordinate
to the supreme Constitution created by the people of the United States and exercising
limited and specific powers assigned to it by that supreme Constitution. Congress
cannot amend that Constitution in any way whatsoever. Majorities of two-thirds in
both the Senate and the House of Representatives may suggest an amendment ; but it
would not become law until it were ratified by majorities of the federal electors in three-
fourths of the States acting through their several legislatures or conventions. This is
one of the fundamental differences between a unitarian Constitution and a Constitution
of a federal character. As a practical illustration of the foregoing definition and
exposition of a Constitution, the following outlines of two typical Constitutions, one
federal, the other Unitarian, are submitted : —

OUTLmES OF THE BRITISH COXSTITUTION.
Part I.
Sovereignty. — Legally vested in the British Parliament — ».e , Queen, Lords, and
Commons — with a strong tendency to recognize the people represented by a majority of
the electors as the body in which the ultimate political sovereigntj' resides ; to be
gathered from various Charters, Patents, Writs, Ordinances, Statutes, Acts, Procla-
mations, legal decisions, and established customs.

Part II.
Go%^RNMEST. — Powers exercised by one set of Executive, Legislative, and Judicial
Oepartments : —

(1) The Executive Department. — Presided over by the Queen, acting for the most
part on the advice of Ministers of State responsible to Parliament. (The
Queen's title— Act of Settlement, 12 and 13 Wm. III. c. 2.)

(2) The Legislative Department. — Power vested theoretically in the Queen, acting
on the advice and with the consent of the Lords spiritual and temporal amd
the Commons ; practically in the Queen in Parliament. The Queen— Her
part in the convening, proroguing, dissolving Parliament ; in recommending
legislation ; her right to assent to or disallow Bills passed by the Lords and
Commons. The Lords Spiritual and Temjioral — The House of Lords, com-
posed of (1) hereditary Peers, '2) Elective Peers, i.e., those who represent the
peerage of Ireland and Scotland, and (3) peers of ofiice. such as Bishops of
the Church of England. Power of the House of Lords theoretically equal
to that of the Commons with certain exceptions, such as control of the
Executive and the alteration of Money Bills. Title of the House of Lords,
immemorial customs, charters, writs, and Acts of Parliament. The House
of Commons — Composed of Representatives elected by the people according
to electoral laws passed from time to time. Power of the House of Commons
in the initiation of legislation unrestricted, except for the constitutional
principle that it may not originate a grant of money or a tax except upon
receipt of a message from the Crown recommending the same. Control of
Ministers. Title of the House of Commons — charters, writs, recognized and
ratified by Acts of Parliament.

318 COMMENTARIES ON THE CONSTITUTION. [Ci. i.

(3) Judicial Department.— Vower vested in the Queen, but exercised by Judges
appointed by the Crown during good behaviour, but subject to be removed
on an Address from both Houses of Parliament. Jurisdiction - to interpret
the common law and the law of Parliament, but not to question validity of
the latter. Securitj- of tenure— Act of Settlement, 12 and 13 Wm. III. c. 2,
and subsequent legislation.

Pakt III.
Rights, Privileoes, and Immunities. — Contained in numerous charters, confirma-
tions of charters, and Acts of Parliament assented to by the Crown from the earliest
period of English history, including Magna Charta(1215) ; the Petition of Rights (1627),
3 Char. I. c. 1 ; the Habeas Corpus Act (1640), 16 Char. I. c. 10 ; the Bill of Rights
(1688), 1 Wm. and Mary c. 2 ; and the Act of Settlement (1700), 12 and 13 Wm. III.
c. 2. The Bill of Rights is of special interest as declaring that certain recited rights are
" the true ancient and indubitable rights and liberties of the people to be firmly and
strictly holden and observed in all times to come."

Part IV.
Colonies.— The Acts 18 Geo. III., c. 12, and 28 and 29 Vic. c. 63, are the charters
of Colonial Independence. By the first it is promised that the British Parliament will
not impose any duty, tax, or assessment whatever, payable in any part of His Majesty's
colonies, provinces, plantations, in North America or in the West Indies. The latter
Act is known as the Colonial Laws Validity Act, 1865, and provides that no colonial
law shall be deemed to be void or inoperative on the ground of repugnancy to the law of
England, unless it is repugnant to the provisions of an Imperial Act specially applicable
to the colony in which such colonial law was passed.

Part V.
Amendment. — No limitation upon the power of the British Parliament to alter the
Constitution ; it may legally be amended by the ordinary process of Legislation ; but
the House of Lords — the last stronghold of resistance to constitutional innovation — is
imder no constitutional obligation to yield to any demand of the House of Commons
until the voice of that House has been confirmed by its constituents at a general
election.

OUTLINES OF THE CONSTITUTION OF THE UNITED STATES.

Part I.

Sovereignty. — Legally vested in the electors of the States, organized within the
Constitution as the amending power.

Part II.
Government. — Two co-ordinate sets of governing organs, national and State,
acting within the spheres marked out for them by the Constitution. Each set of organs
is independent of the other, but both are subject to the common sovereignty :

(a) National Government. — Can only act within the sphere of powers granted to it
by the Constitution.

(1) National Executive Department. — Power vested in the President,

chosen under the Constitution by the electors of the States. Some
executive acts require assent of Senate.

(2) National Legislative Department. — Power vested in Congress ; House

of Representatives elected by people of States in proportion to
population ; Senate consisting of two Senators from each
State, chosen by the Legislature of the State. President has a
veto, which may be overridden by a two-thirds majority of each
House.

§18.]

COVERING CLAUSES.

311>

(3) National Judicial Department. — Power vested in the Supreme Court

of the United States, established by the Constitution, and other

federal courts established by Congress under powers conferred by

the Constitution.

(6) State Governments. — Can onlj' act within the residuary sphere of powers which

are neither prohibited to the State Governments nor exclusively given to the

Federal Government. Within that sphere, the Government of each State is

vested in the electors of the State organized within the Constitution of the

State. Subject to the Federal Constitution and the Constitutions of the

States : —

(1) State Executive Departments. — Power vested in State Governors

appointed under State Constitutions.

(2) State Legislative Departments. — Power vested in State Legislatures,

elected under State Constitutions.

(3) State Judicial Departments. — Power vested in State Courts established

under State Constitutions.

Part III.
Rights, Privileges, a>'d Immfxities. — Defined by the Constitution as amended
from time to time. Subject to modification by the sovereign people, but seciire against
Federal and State Governments.

Part IY.
Amendment. — The mode of amendment by the sovereign people prescribed by the
Constitution requires : — (1) Initiation by two-thirds majority in each House of Congress,
or (on the demand of the Legislatures of two-thirds of the States) by a Constitutional
Convention ; (2) ratification by Legislatures or Conventions in three-fourths of the
States. An amendment depriving any State of its equal representation in the Senate
[requires the coosent of that State. The process of amendment is itself subject to
{amendment in the prescribed mode.

CONSPECTUS OF THE BRITISH CONSTITUTION.
Sovereign Parliament.

Crown.
(Titular Sovereign. )

Lords. Commons.

(Representing political
Sovereign. )

(Executive.)

(JROWN.

Prfvy Council.
Cabinet.

(Legislative.)

( JudiciaL )

House of Lords.

Crown in Council.

Courts Generally.

3eneral laws for
the benefit of

' subjects.

{Rights, liberties,

I immunities,
prohibitions.

Special laws for
particular
cases.

Contracts.

Torts.

Crimes.

Electoral
franchise.

Amendment.

Municipal.

Local

Government.

I
Colonial Constitutions
Quasi -sovereign Legislature.

Governor. Leg. t'ouji. Leg. Ass.

Colonial
A dministration.
Governor.
Executive

Council.

Cabinet.

I I

Colonial Colonial

Legislation. Judiciary.
General
and
Provincial

Laws.

Municipal

Government.

320

COMMENTARIES ON THE CONSTITUTION.

[CL 2.

CONSPECTUS OF THE UNITED STATES CONSTITUTION.

Sovereign Peoplk.

f — \

The electors of three-fourths of the States acting through

their respective Legislatures or Conventions.

Constitution

OF THE

United States.

State Governments-
Electors organized
within State
Constitutions.

State Constitutions,

State
Executive.

Rights of citizens Mode of amend-
and States. ing Constitu-

Liberties. tion.

Immunities.
Prohibitions.

Federal Government.

State
Legislature.

National National National

Legislature. Executive. Judiciary.

Congress. President. Federal

I Courts.

State
Judiciary.

Senate : House of Re-
presentatives.

National
Legislation.

National
Administration.

Local Laws.

Municipal

Government.

Act to extend to the Queen's Successors.

2. The provisions of this Act referring to the Queen^''
shall extend to Her Majesty's heirs and successors^" in the
sovereignty^^ of the United Kingdom,

Canada.— The provisions of this Act referring to Her Majesty the Queen extend also to the
Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great
Britain and Ireland. — British North America Act, 1867, sec. 2.

HiSTOKiCAL Note. — The clause as originally drawn in the Sydney Convention,
1891, was taken verbatim from the Canadian clause, supra. In Committee, on Mr.
Rutledge's suggestion, the words "in the sovereignty " were substituted for "Kings
and Queens." (Conv. Deb., Syd. [1891], p. 557.) As drawn at the Adelaide session,
1897, the clause ran :— " This Act shall bind the Crown and the Executive officers of the
Commonwealth, and its provisions referring to Her Majesty the Queen shall extend," &c
Mr. Higgins moved the omission of the words ' ' and the Executive officers of the Com-
monwealth," and this was agreed to. (Conv. Deb., Adel., pp. 619-20.) At the Sydney
session, there was a short discussion on the words "This Act shall bind the Crown.
(Conv. Deb., Syd. [1897], pp. 225-7.) At the Melbourne session, verbal amendments
were made before the first report and after the fourth report.

In England, the Crown Law officers recommended the omission of the words " This
Act shall bind the Crown " (Pari. Paper, May, 1900, p. 19). In the Bill as introduced
into the Imperial Parliament this course was adopted, and the clause was worded " The
provisions of this Act, and of the Constitution att forth in the schedule to this Act," etc —

18-19.1 COVERING CLAUSES. 321

the Constitution being then placed as a " schedule " to the Bill. When the original
I form of clause 9 was restored in Committee, and the word " schedule " omitted, the
i words in italics became inapplicable ; and before the third reading they were omitted.

I § 19. "Referring to the Queen."

\ Referen'CES to the Qcekx. — The direct references to the Queen in the Act and

I Constitution {elsewhere than in the enacting words) are as follows : —

Preamble (admission of other possessions of the Queen). Clause 3 (Queen may
proclaim Commonwealth, &c.). Clause 5 (Queeu's ships of war). Section 1 (Queen in
Federal Parliament). Section 2 (Governor-General appointed by the Queen). Section
34 (subject of the Queen). Section 44 (Queen's Ministers for Commonwealth or State —
oflScers or members of Queen's navy or army). Sections 57-60 (Queen's assent to Bills).
Section 61 (Executive power vested in Queen). Section 64 (Queen's Ministers of State).
Section 66 (salaries of Ministers). Sections 73-4 (Appeals to Queen-in-Council). Section
117 (subject of the Queen). Section 122 (territories). Section 126 (Deputy Govemor-
■General). Section 128 (Queen's assent to constitutional amendments). Schedule (oath
of allegiance).

Besides references to " the Queen," there are references to "the Crown " (e.g., in
the Preamble and sec. 44) — a term which in English law is usually used as an impersonal
or abstract description of the occupant of the throne — commonly called the sovereign—
whether King or Queen. Sometimes it is used in a wider and more popular sense as
representing the majesty and sovereignty of the nation (see note on "Sovereignty,"
§ 21).

Crown xot Bocxd Unless Named.— It is a recognized canon in the construction

of Statute law that in any case where the Crown would be ousted of an existing pre-

••"irative, it is not bound, affected, or reached unless named therein either expressly or

necessary implication. It is presumed that the legislature does not intend to deprive

e Crown of any right of property unless it expresses that intention in explicit terms

'T makes the inference irresistible. (Maxwell on Statutes, p. 186 ; Broom's Legal

Maxims [6th ed.], p. 68. ) In conformitj' \vith this principle it has been held that the

compulsory clauses of Acts authorizing land to be taken for railway purposes would not

apply to a Crown propertj', because they were not made so applicable in express terms

•r by necessary inference ; that, it being a prerogative of the Crovm not to pay tolls or

rates or other burthens on property, the Poor Act of 43 Elizabeth, authorizing the

Imposition of poor rates on every inhabitant or occupier of property in the parish, did

; apply to the Crown or to its direct or immediate sen'ants whose occupation is for the

rposes of the Crown ; re Cuckfield Board, 24 L. J. Ch. 583 ; Mersey Docks v. Cameron,

H.L. Cas. 443. Numerous Acts of Parliament have at various times abolished
. ..e writ of certiorari, but they have been held not to apply to the C^o^m, which still
jhad its remedy by the prerogative writ. Where a local Act imposed wharfage dues, for
jthe repairs and maintenance of a harbour, on certain articles, including stones, and,
jwithout expressly binding the Crown to make such payments, exempted it from liability
jin respect of coals imported for the use of the royal packets and from a toll over a
Ibridge, the com-t refused to infer from the exemptions an intention to charge the Crown
respect of any other goods. (Weymouth v. Nugent, 34 L.J., M.C. 81.)

The rights of the Crown are not bari-ed by any Statute of Limitations, unless it is
xpressly named therein ; and this rule extends to cases where the right of the Crown
> merely nominal. (Reg. r. Bayley, 4 Ir. Eq. R. 142.) Qiuere, whether, when an Act
j)f Parliament transfers jurisdiction from one court to another, or grants an extension of
;he jurisdiction of an existing court, it is necessary, in order to make the Act binding
bn the Crown, that the Crown should be named therein. (London Corporation v. Att.-
pen., 1 H.L. Cas. 440 ; Dig. of Eng., Case Law v., p. 7-8.)

] The Crown not being bound by the Statutes of Bankruptcy, the protection of a
Mokrupt from an extent is limited to actual attendance upon the commissioners, upon
he common-law pri\-ilege of a witness or party, not extending through the intervals of
tdjoomment by the statute. {Ex parte Temple, 2 Ves. and B. 391 ; Cranfurd i?. Att.-

322 COMMENTARIES ON THE CONSTITUTION. [Cl.2.

Oen., 7 Price, 2.) The Bankruptcy Act, 1883, sec. 150, enacting that, save as therein
provided, the provisions of that Act relating to the priorities of debts, the effect of a
composition or scheme of arrangement, and the effect of a discharge, sliall bind the
Crown, does not by virtue of the Judicature Act, 1875, s. 10, operate as an incorpora-
tion, in the Companies Act, 1862, of a similar provision so as. in a winding-up, to bar
the Crown of its prerogative of priority of payment over all creditors. {Re Oriental
Bank Corporation, 28 Ch. D. 643 ; Dig. of Eng. Case Law v., p. 8.)

'J he Crown, though not bound by 3 and 4 Will. 4, c. 55, s. 31, and 3 and 4 Vic,
c. 105, s. 20, which give to creditors by judgment or recognizance a right to have a
receiver appointed on petition, may take advantage of the Acts, but is not bound by the
restrictions imposed on that right by 12 and 13 Vic, c 95, s. 10. (Reg. v. Cruise, 2 Ir.
Ch. R. 65.) The Statute of Frauds does not bind the Crown, but takes place only
between party and party, for the king is nor named. Lord Hardwicke, however,
doubted this doctrine. (Addington y. Cann, 3 Atk. 154.) Crown property, as well as
property devoted to or made subservient to the Queen's government, is exempt from
poor rates, but property held upon trust to create or to improve docks and harbours in
seaport towns, though having a public character, and though devoted to public purposes,
is nevertheless subject to be rated to the relief of the poor. (Clyde Navigation Trustees
V. Adamson, 4 Macq. H.L. 931 ; Dig. of Eng. Case Law v., p. 8.)

The Crown is bound by the two codes of Lower Canada ; in the liquidation of a
bank it can claim no priority of payment over the other creditors except what is allowed
by these codes. (Exchange Bank of Canada v. Regina, 11 App. Cas. 157).

The Victorian Crown Liability and Remedies Act, 1865 28 Vic. No. 241), does not
affect the prerogatives of the Crown when suing in England. {Re Oriental Bank Co-
operation, 28 Ch. D. 643. )

It was to prevent the operation of this maxim — that the Crown is not bound by a
statute unless named therein— that the Convention inserted the words "This Act shall
bind the' Crown. " Compare the phrase "This Act shall be binding on the Crown"
(Imperial) Interpretation Act, 1 889 (52 and 53 Vic. c. 63, sec. 30). This was objected
to by the Imperial Crown Law officers as possibly affecting not only the prerogative
right of the Queen-in-Council to hear appeals, but also a wide range of other pre-
rogatives ; and the words were consequently omitted (see Historical Note).

Notwithstanding the omission of these words, there are many provisions of the
Constitution which affect the Crown by express reference or by necessary implication.
Not only the words " the Queen," " the Crown," " the Governor-General," but also the
words "the Commonwealth," and "a State," occurring frequently throughout the
Constitution, are references to the Crown which may affect the prerogative to a con-
siderable extent. It is therefore advisable to discuss the nature of the prerogative, and
the chief ways in which it may be affected by the Constitution.

Peerogatives. — These are the residuary fractions and remnants of the sovereign
power which, unimpaired by legislation and revolution, remain vested in the Crown.
They are the products and survivals of the Common Law and are not the creatures of
statutes. Statute law tends gradually to invade and diminish the domain of prerogative.
Among the examples of prerogatives the following may be enumerated : —

(1.) The exercise of the ordinary Executive authority by the Crown, through
Ministers of State ; subject to certain legal and customary restraints
such as the control of the House of Commons by virtue of its power to
refuse supplies.

(2.) Dissolution and Prorogation of Parliament.

(3.) The administration of Justice in the name of the Crown, through judges
and counsel appointed by the Crown.

(4. ) The pardon of offenders.

(5.) Command of the Army and Navy.

(6.) Foreign affairs ; peace and war.

(7.) Accrediting and receiving Ambassadors.

(8.) Entering into treaties with foreign nations.

(9. ) Recognition of foreign States.
(10.) Appropriating prizes of war.

§§ 19--20.1

COVERING CLAUSES. 323

(11.) Sharing legislation ; right to veto.

(12. ) Allegiance ; right of the CroT*Ti to the allegiance and service of its subjects.

(13.) Ecclesiastical authority with respect to the Church of England.

(14.) Control over titles, honours, precedence, franchises, &c., coining money,

superintendence over infants, lunatics, and idiots.
(15.) Special remedies against the subject, such as intrusion, quo tcarranto,

distress, escheat, extent.
(16.) Lordship of the soil.
A number of these prerogatives have become obsolete through desuetude, although
they have never been swept away b^* Act of Parliament. Others of them have been
cat doAivn and reduced to matters of form, or denuded of most of their former vigour
and activity.

PKEROGATn'ES LIMITED BY THE CoxsTiTCTiox. — In the coursG of thcse Notes
attention will be drawn to clauses and sections which apparently contract the pre-
rogatives of the Crown ; foremost amongst them may be here generally indicated four of
special importance : —

(1.) Section 1 of the Constitution, providing that the legislative power shall
be vested in a Federal Parliament consisting of the Queen, the Senate,
and the House of Representatives.
(2.) Section 59, restricting the period within which the Queen may disallow laws

assented to by the Governor-General.
(3.) Section 62, creating an Executive Council to advise the Governor-General

as the Queen's Representative.
(4. ) Section 74, limiting the right of appeal to the Queen in Council.
Prerogatives Confirmed by the Constitdtiox. — Certain well-known and long-
established powers of the Crown instead of being negatived are confirmed by the Consti-
tution, such as : —

(1.) Section 5. — The Governor-General may convene, prorogue, and dissolve the

Federal Parliament.
(2.) Section 62. — The Governor-General may choose and summon members of

the Executive Coimcil to advise him.
(3.) Section 64. — The Governor-General may appoint officers to administer
such Departments of State as the Govemor-Genei-al in Council may
establish.
(4.) Section 68. — The Governor-General shall be the Commander-in-Chief of the
naval and military forces of the Commonwealth.
No doubt most or the whole of these and other powers vested in the Governor-
General will, in accordance with what have been elsewhere referretl to as the "Under-
standings and Conventions of the Constitutions," § 18, be exercised by the Queen's
Representative in a Constitutional manner, that is, on the advice of responsible
Ministers. (See § 271, " Executive Government.")

§ 20. " Her Majesty's Heirs and Successors.**

The Succession to the Crown was, after the revolution of 1688, settled by the Bill
of Rights, I. Wm. and Mary (2nd Sess.), c. 2. The throne being declared vacant by
the abdication of James II., the Crown was settled on King William III., Prince of
Orange, grandson of Charles I., and nephew and son-in-law of the deposed monarch, and
on Queen Mary, eldest daughter of James II. and wife of William UL, for their joint
lives ; then on the survivor of them ; then on the issue of Queen Mary ; upon failure of
such issue it was limited to Princess Anne of Denmark, King James' second daughter,
*nd her issue ; and lastly, on the failure of that, to the issue of King William. Towards
the end of King William's reign, when it became probable that neither he nor Princess

324 COMMENTARIES ON THE CONSTITUTION. [ci. 2.

Anne would leave issue to inherit the Crown, it became necessary to make other legis-
lative provision for the succession, which was done by 12 and 13 William III. c. 2,
commonly known as the Act of Settlement (1702). The first section of this Act declared
that, after his Majesty King William III. and the Princess Anne of Denmark, and in
default of issue of the said Princess Anne and of his Majesty respectively, the Princess
Sophia, Electress of Hanover, grand-daughter of King James I., should be next in
succession to the Imperial Crown and dignity "of the said realm of England, France,
and Ireland, with the dominions and territories thereunto belonging," and that after the
decease of his Majesty William III. and her Royal Highness the Princess Anne,
and in default of issue of the Princess Anne and of his Majesty respectively, the Crown
and Regal Government of the *' said Kingdom of England, France, and Ireland and of
the dominions thereunto belonging, with the Royal State and dignity of the said realm
and all honours, styles, titles, regalities, prerogatives, powers, jurisdictions, and
authorities to the same belonging and appertaining, shall remain and continue to the
said Most Excellent Princess Sophia and the heirs of her body being Protestants." The
fourth and last section of the Act recites that "whereas the laws of England are the
birthright of the people thereof, and all the Kings and Queens v/ho shall ascend the
throne of this realm ought to administer the government of the same according to the
said laws, and all their officers and ministers ought to serve them respectively according
to the same ; the said Lords Spiritual and Temporal and Commons do therefore
further humbly pray. That all the laws and statutes of this realm for securing the
Established Religion, and the rights and liberties of the people thereof, and all other
laws and statutes of the same now in force, may be ratified and confirmed ; and the same
are by his Majesty by and with the advice and consent of the said Lords Spiritual and
Temporal and Commons and by the authority of the same ratified and confirmed accord-
ingly."

Both William III. , and Queen Anne after him, died without leaviug issue ; the
Princess Sophia predeceased Queen Anne. The inheritance, tlierefore, descended to her
son and heir, who became King George I. From him it descended to King George II.,
from whom it descended to George III.; then to George IV., who was succeeded by his
brother, William IV. ; and after him it descended to his niece Princess Victoria, our
present Gracious Queen, daughter of Edward, Duke of Kent. (Stephen's Comment.,
vol, 2. p. 451.)

§ 21. "Sovereignty of the United Kingdom."

Sovereignty. — A clear conception of the meaning of " sovereignty " is the key to
all political science. The relation of the Commonwealth to the Empire, and the relation
of the Federal and State Governments of the Commonwealth to one another, can hardly
be appreciated apart from a sound study of the principle of sovereignty. The specu-
lations of such philosophers as Hobbes, Locke, and Rousseau, the learning of Blackstone
and Bentham, the critical analysis of Austin, the historical researches of Maine, and the
labours of such modern writers as Holland, Dicey, Leslie Stephen, Burgess, and many
others, have all contributed, from many sides, to throw light on the central idea' which
the word sovereignty represents ; and of recent years the interchange of thought
between English and American writers, and a comparative study of their widely
diflFerent institutions, has done much to clear away doubts and difficulties. In this work
only a brief note can be devoted to this vast subject.

Before attempting any definition of sovereigntj-, it is advisable to call attention to
the necessity of avoiding confusion between three distinct uses of the word :— (I) Legal
sovereignty— as when we speak of the sovereignty of the British Parliament ; (2)
political sovereignty— as when we speak of the sovereignty of the people ; (3) titular
sovereignty — as when we speak of the sovereignty of the Queen. As the primary mean-
ing of the word is the legal one, it is best to begin from that standpoint.

§ 21.] COVERING CLAUSES. 325

(1.) Legal SovEREicsTr. — Sovereignty, then, is an attribute, and the most essential
attribute, ot a State —that is, of an independent political community. It is defined by
Burgess (Pol. Science, I. 52) as "original, absolute, unlimited, universal power over the
individual subject and over all associations of subjects." The legal sovereign is that
person, or determinate bodj' of persons, which possesses, in a State, a power which in
point of law is absolute and unlimited. Such a body is the British Parliament ; such a
body are the electors of the United States organized under the Constitutional proxnsion
for the amendment of the Constitution. Legally speaking, such a body of persons
is the State itself ; the State is the sovereign, and the sovereign is the Stat«.

Corresponding to this view of legal sovereignty as power, we may define political
sovereigntj' as the will which lies behind the power. Political sovereignty is thus also
an attribute of the State ; it is the corporate will — or what Rousseau called the
" general will "— of the community. And from this definition of political sovereignty
as the " general will " of the community, we may in turn deduce legal sovereignty as
the legal expression, or embodiment, or manifestation, of that wilL

Sovereignty, therefore, resides in the State, but it is principally manifested through
the Government, its creature. Every competent organ of government, legislative,
judicial, or executive — Parliaments, courts, constitutional assemblies, electorates in their
legislative capacity, Kings, Presidents, Governors, J^xecutive Councils — are organs
through which the sovereign power is exercised. In one sense the aggregate of these
Ijodies within a State, as exercising the sum-total of sovereign power, maj- be considered
as depositaries of sovereignty ; but in another and a truer sense sovereignty is located in
the ultimate legislative organ — the supreme organic unity which in the last resort con-
trols all the others.

Can sovereignty be legally limited ? The above definitions negative the possi-
bility ; but they are not universally concurred in. The historical school point to
communities in which no sovereign can be discovered ; and Dicey (Law of the Consti-
tution, p. 135) fails to see why it should be inconceivable that the framers of a Consti-
tion should have deliberately omitted to provide means of altering it. Most writers,
wever, agree that sovereignty cannot be limited even by a direct prohibition in the
ndamental instrument, but that such a prohibition is inconsistent with the very concep-
n of a State, and must be disregarded. (See Burgess, Pol. Science, I. pp. 51-2 ; W.
.V. Willoughby, The Xature of the State, p. 214.)

True political science seems to point to the conclusion that sovereignty is incapable

: legal limitation, either from without or within. A sovereign body cannot be legally

utroUed by another body, for then that which controls would be sovereign. Nor can

l)e legallj- controlled by a prohibition, express or implied, in a written document ; for

I lien the written document would be sovereign — though it can have neither will nor

power. Either the organization which framed the Constitution can be legally convoked

again — in which case it is the sovereign ; or it cannot — in which case its prohibition,

directed against the State, is without sanction and without eflFect.

As sovereignty is incapable of legal limitation from without, so it is unable to bind
itself. With a sovereign there is no such thing as " irrevocable laws." The sovereign
power which makes a law can alter or repeal it. It is true that sometimes a sovereigri
body may pass a law and declare it to be so sacred and organic that it shall last for
ever, such as the Act for the union of England and Scotland. Such a declaration of
intention or policy would have great weight with, but could not legally bind, succeeding
Parliaments. As a matter of fact that Act of Union has already been amended in cer-
tain particulars, which were originalh" declared to be fundamental and unchangeable
conditions of the union. So the Act for the union of Great Britain and Ireland has been
amended by the disesUblishment of the Irish Church.

I Influe.nces on Sovereignty. — But although there can be no legal control or
pimitaticn of the sovereign authority, there are many practical and eflFective influences

326 COMMENTARIES ON THE CONSTITUTION. [Cl. 2.

at work in every well-ordered society, which prevents the sovereign power from being
exercised with unrestricted, reckless, and irresponsible omnipotence, and which tend to
chasten and temper, if not curtail, the exercise of supreme authority, whether it be
vested in an absolute monarch, or in a king in parliament, or in a complex body such as
a three-fourth majority of the Legislatures of the United States. Among those
influences some are internal, to be found in the character, organization, and historical
antecedents of the sovereign person or body ; but the most powerful are the external
surroundings and circumstances which guide and direct the mode of calling into action
the sovereign will, such as the right of petition for redress of grievances ; the right of
public criticism ; the right of the public to combine and remonstrate against oppression
and wrong-doing, and above all the knowledge possessed by sovereign rulers that if they
persist, for any protracted period, in attempting to govern contrary to reason and
justice, and contrary to the wishes, interests, and instincts of the bulk of their people,
they will lose popular support, encounter popular resistance, and run the risk of
rebellion and revolution ; as actually happened in England during the reign of James II.
These moderating forces, proceeding from the environments of a sovereign, or of a
sovereign body, tend no doubt to reduce the dogma of unrestricted, uncontrolled
sovereignty to a legal fiction. Legally the Sultan of Turkey could abolish Mohammed-
anism and introduce Christianity into his dominions, but he would not and dare not do
so. Legally the Czar of Russia could revoke the edict for the emancipation of the serfs,
but he would not and dare not do so. Legally the Queen in the British Parliament
could tax the Colonies, as was done in the reign of George III., but they would not
dream of such a policy, much less attempt it. Similarly, two-thirds of Congress could
propose, and three-fourths of the legislatures of the States could ratify, a constitutional
law re-establishing slavery in America. But the moral influences to which legal
sovereignty is subject, emanating from considerations of expediency, justice, and
humanity, would frown down and destroy any such proposals.

Formal Restraints. — Important among the internal restraints upon sovereignty
are those which relate to the legal organization and structure of the sovereign body.
Just as the sovereign body may be restrained by its moral character and environments,
so it may be restrained by its legally determined structure or procedure. Thus there is
a formal restraint on the sovereignty of the British Parliament in the necessity for the
concurrence of Queen, Lords, and Commons. There is a formal, and most effectual,
restraint on the sovereign amending power of the United States in the requirement of
ratification by three-fourths of the States. There is a formal restraint on the quasi-
sovereignty of the Commonwealth in the requirement of ratification by a majority of
the people and also by a majoritj' of the States — and also, in some cases, by every State
affected. These formal restraints are, strictly speaking, restraints on the mo<le of
exercise of sovereignty, not on the sovereignty itself. Nevertheless, they may attain
any degree of stringency, from requiring the concurrence of special majorities, to
requiring the complete unanimity of every member of a complex body. Thus the formal
limitation may amount practically to an almost absolute prohibition of amendment ; and
the sovereign power may be, as the American sovereign is, " a despot hard to rouse,"
** a monarch who slumbers and sleeps." (Dicey, Law of the Constitution, p. 187 ; anii
«ee Sidgwick, Elements of Politics, Appendix. )

(2.) Political Sovereignty. — Political sovereignty has been incidentally defined
in our discussion of legal sovereignty. As a legal conception, a sovereign is one whose
commands, whether just or unjust, wise or unwise, politic or impolitic, the courts will
enforce. With political sovereignty the courts have nothing to do. They cannot
recognize the " general will " of the political sovereign, but only the manifestation of
that will as declared by the legal sovereign.

"That body is 'politically' sovereign or supreme in a State the will of which w
ultimately obeyed by the citizens of the State. In this sense of the word the electors
of Great Britain may be said to be, together with the Crown and the Lords, or perhaps,

4 21.] COVERING CLAUSES. 327

in strict accuracy, inrlependently of the King and the Peers, the body in which
sovereign power is vested. For, as things now stand, the will of the electorate, and
certainly of the electorate in combination with the Lords and the Crown, is sure ulti-
mately to prevail on all subjects to be* determined by the British Government. The
matter indeed may be carried a little further, and we may assert that the arrangements
of the Constitution are now such as to ensure that the will of the electors shall by
regular and constitutional means always in the end assert itself as the predominant
influence in the country. But this is a political, not a legal fact The electors can in
the long run always enforce their will. But the Courts will take no notice of the will
of the electors." (Dicey's Law of the Constitution, p. 66.)

" Adopting the language of most of the writers who have treated of the British
Constitution, 1 commonly suppose that the present parliament, or the parliament for
the time being, is possessed of the sovereignty ; or I commonl}- suppose that the King
and the Lords, with the members of the Commons' house, form a tripartite body which
is sovereign or supreme. But, speaking accurately, the members of the Commons'
house are merely trustees for the body by which they are elected and appointed ; and,
consefjuently, the sovereignty always resides in the King and the Peers, with the
electoral body of the Commons. That a trust is imposed by the party delegating, and
that the party representing engages to discharge the trust, seems to be imported by the
correlative expressions ' delegation ' and 'representation.' It were absurd to suppose
that the delegating empowers the representative party to defeat or abandon any of the
purposes for which the latter is appointed ; to suppose, for example, that the Commons
empower their representatives in Parliament to relinquish their share iu the sovereignty
the King and the Lords." (Austin's Jurisprudence, vol. L, p. 25.3.)

It is quite true, as Dicey, in another passage, points out, that no English judge ever
■needed, or under the present Constitution could concede, that Parliament in any legal
-tiise is a trustee for the electors. Equally, as a matter of law, some jurists have eon-
tended that the Queen is the supreme administrator and supreme legislator, acting by
and with the advice of ministers in matters of administration, and by and with the
advice and consent of Parliament in matters of legislation. That is true in theory and
as a constitutional form. Legal fictions are useful and potent solvents in the transfor-
mation of ideas. The legal sovereignty of Parliament is undoubted ; but the sovereignty
1 of Parliament, a principle of transcendent force and importance which superseded the
sovereignty of royalty, is in reality, if not in name, rapidly tending to become a fiction,
like that of regal sovereignty, which for a time it supplanted ; it is gradually giving way
before the idea of the sovereignty of the electoral body, or the sovereignty of the people
represented by the electors. At present the idea of political sovereignty is prominent.
Men commonly speak to-da\' in the language of politics, rather than in the language of
jurisprudence. And the tendency to confuse legal and political sovereignty is increased
liy the fact that in some countries — for instance, Switzerland, and even the United
States — the two are to a great extent identical. Wherever the ultimate legal sovereign
- not a representative, but a constituent body — wherever the people themselves enact
e supreme law— the political sovereign and the legal sovereign are the same. For
kI or for evil, the movement in favour of the Referendum — which finds a place in this
■institution as a means for the alteration of the organic law — tends in this direction.

13.) Titular Sovereignty. — "This term is used to designate the king, or queen.

' of the United Kingdom ; often also iu the phrase ' Our Sovereign Lord the King,' or

' ,"! Sovereign Lady the Queen,' in Acts of Parliament and proclamations. There is

nuplied in it the theorj^ that the king is the possessor of sovereignty, or the powers of

il)reme government, as a monarch, in the strictest sense of jurists and constitutional

titers ; and in that sense it has long ceased to be a correct designation. The king is

I neither 'sovereign ' nor 'monarch,' but, this notwithstanding, he hardly is mentioned

jottener by his appropriate title of 'king' than by those inappropriate and affected

names.' (Austin's Jurisprudence, Campbell's ed., N^ote, p. 24'2.)

Delegated Sovereigxtv.— In all the constitutional Acts passed by the British

I Parliament conferring the right of self-government on British colonies, it is expressed or

implied that the sovereignty is vested in the Queen. This form of expression is in

I accordance with traditional theory and usage, and it has been continued as a matter of

courtesy, notwithstanding the fact that the form is at variance with the reality and the

substance ; as elsewhere pointed out (Note, § 11) the Queen shares with the Houses of

328 COMMENTARIES ON THE CONSTITUTION. [ci.3.

the British Parliament in the sovereignty of the British Empire. The office of legis-
lation, like the judicial and executive functions of sovereignty, may be delegated by the
sovereign principal to subordinate persons or bodies, such as colonial governors and]
colonial parliaments. Within the limits of their constitutional Acts and charters, sucl
governors and parliaments may exercise all the ordinary authority of a sovereign, in tt
same way as the Queen in the British Parliament, subject only to the same mora
checks and restraints which have been already enumerated. (Dicey, Law of the Consti-
tution, p. 95.)

The constitutional Acts of the colonies of Great Britain are illustrations of this-]
delegation of sovereign power. Most of these colonies possess Statutory Constitutions, i
conferring on their respective legislatures, together with the Queen, represented by a<|
governor, authoritj^ to legislate for the peace, order, and welfare of the people withiaj
their respective territories. The Constitution of the Dominion of Canada is a con-
spicuous example of this delegation. The Constitution of the Australian Commonwealth i
is an even more notable instance of the same process. But colonies, dominions, or|
commonwealths, having such a system of government, substantially free and practically
independent, are still subject to the original sovereign body, the Queen in the British !
Parliament. That power, though dormant, is not extinguished or abandoned by the
delegation. There is merely an implied compact not to interfere with those com-
munities as long as they govern themselves according to the terras of their respective
Constitutions. (Markby's Elements of Law, pp. 3, 4, 20. )

Proclamation of Commonwealth.

3. It shall be lawful for the Queen, with the advice of]
the Privy Council", to declare by Proclamation"* that, on and
after a day therein appointed^^, not being later than one year]
after the passing of this Acf^^ the people of New South
Wales, Victoria, South Australia, Queensland, and Tasmania,
and also, if Her Majesty is satisfied that the people of
Western Australia have agreed thereto, of Western Aus-'
tralia, shall be united^® in a Federal Commonwealth'^'' under
the name of the Commonwealth of Australia. But the
Queen may, at any time after the Proclamation, appoint a
Governor-GeneraP^ for the Commonwealth.

Canada. — It shall be lawful for the Queen, by and with the advice of Her Majesty's Most
Honourable Privy Council, to declare by Proclamation that, on and after a day therein
appointed, not being more than six months after the passing of this Act, the Provinces of
Canada, Nova S,cotia, and New Brunswick shall form and be one Dominion under the
name of Canada ; and on and after that day those three Provinces shall form and be one
Dominion under that name accordingly.— B.N. A. Act, sec. 3.

Historical NoTK.— Clause 3 of the Commonwealth Bill of 1891 was as follows:—
" It shall be lawful for the Queen, by and with the advice of Her Majesty's Most
Honourable Privy Council, to declare by Proclamation that, on and after a day therein
appointed, not being later than six months after the passing of this Act, the colonies of
[here name the Colonies ichich have adopted the ComstittUion] . . . shall be united in one
Federal Commonwealth under the Constitution hereby established, and under the name
of the Commonwealth of Australia ; and on and after that day the said colonies shall \»
united in one Federal Commonwealth under that name." (Conv. Deb., Syd. [1>*91],
p. 557.)

At the Adelaide Session, the clause was introduced in the same form, except that it
was provided that the colonies " shall be united in a Federal Constitution under the nam^
of the Commonwealth of Australia, and on and after that day the Commonwealth shall
be established under that name." On the motion of Mr. Isaacs, the clause was amended
to read that " the people of" the colonies should be united. A further amendment by

§§ 21-22.] COVERING CLAUSES. 329

Mr. Isaacs that they should be united " by " — not " in " — a Federal Constitution, was
negatived. (Conv. Deb., Adel., pp. 620-1.) At the Sydney session, on Mr. O'Connor's
motion, "one year" was substituted for "six months." (Conv. Deb., Syd. [1897],
pp. 227-8.)

At the Melbourne session, a proposal by Mr. Symon, to omit "the Commonwealth
of," was negatived by 21 votes to 19 (Conv. Deb., Melb., pp. 1746-60) ; and after the
second report the same amendment, again moved by Mr. Symon, was negatived by 25
votes to 18. Mr. Reid proposed to add words enabling the Queen, at any time after the
proclamation, to appoint a Governor General, who might, before the Commonwealth was
established, summon members of the Federal Executive Council and appoint other
necessary officers ; but !Mr. Barton thought this went too far, and suggested the words :
— " The Queen may, at any time after the making of the proclamation, appoint a
Governor-General for the Commonwealth." This was agreed to. (Conv. Deb., Melb.,
pp. 1920-2 ) Drafting amendments were made after the fourth report.

In the Imperial Parliament, the names of the federating colonies were filled in, with
the provision for including Western Australia in the Proclamation if the Queen were
satisfied that the people of Western Australia had agreed to the Constitution. (See
Bistorical Introduction, p. 242, supra.)

§ 22. "Privy Council."

This body was originally one of the most important councils of the Crown, variously
called the Concilium Jiegin, the Ordinary Council, the Continual Council, and the Secret
or Privy Council (Privatum Concilium). It acquired the last-named designation during
the reign of Henry VI. (1422-1461;. It was a council of confidential advisers, who were
in constant attendance upon the king and assisted him in the decision of all questions of
public policy and in the administration of the business of the kingdom. It represented
the unity of the executive government. It consisted of nobles and other eminent
j persons in whom the king had confidence. Sir Edward Coke described it as an honour-
able and revered assembly of the king (4 Institutes, 53). Lord Hale described it as
the Concilium in concilio, referring to the fact that the members of that council, being
peers, were also members of the Magnum Concilium for which, in consultation with the
king, they prepared the business. It was foreshadowed in the reign of Henry III. and
imed a definite organization during the long period covered by the successive reigns
the three Edwards. It was one of the three groups into which the Magnum Concilium
I was originally divided and which afterwards became fused into the House of Lords.
These groups were — (1) The Lords Spiritual; (2) the Lords Temporal; and (3) the
official and bureaucratic element inimediately associated with the king in the govern-
ment of the realm. (Gneist, English Const., pp. 349-351.)

In the middle ages the number of members of the Privy Council was limited to
jabout fifteen. During the reign of Henr}' IV. (1401) the Council was composed of nine
(peers, three bishops, six knights and one untitled person. During the reign of

i Charles II. (1660-1685) the number of members had so increased as to make the body
unwieldly " and unfit for the secrecy and dispatch which are necessarj- in many great
iffairs." A plan of reconstruction proposed by Sir William Temple was adopted.
According to this the number of Privy Councillors was restricted to thirty, of whom
if teen were to be ministers and principal officers of state, and the remaining fifteen
nduded ten lords and five commoners chosen by the king. During the same reign the
5erm of the modern Cabinet appeared in the custom which then began of consulting
>nly a select or confidential committee of the Council in reference to important parlia-
uentary and executive business. After that reign the numerical strength of the Privy
council, notwithstanding Temple's plan, went on increasing. At the present time there
3 practically no limit to the number of persons who may be appointed members of the
^ouuciL There are now more than 200 Privy Councillois who may be classified as

330 COMMENTARIES ON THE CONSTITUTION. [ci. 3.

follows : — (1) Members of the Royal Family and noblemen of the highest rank ; (2) states-
men who hold or have held high political office ; (3) the Speaker and members of the
diplomatic service who have attained the rank of ambassadors ; (4) great officers of state
departments on their retirement after long and distinguished service ; (5) the Lord
Chancellor and other judges of the superior courts ; (6) ecclesiastical dignitaries ; (7) the
Commander-in-Chief and the Master- General of the Ordnances ; (8) colonial ministers
who have rendered conspicuous service to the Empire. These eminent personages are
styled collectively " The Lords and others of Her Majesty's Most Honourable Privy
Council," and they are each entitled to be addressed as " The Right Honourable." In
modern practice this numerical and talented complexity of the Council has not been
found inconvenient, as no Privy Councillors, except those occupying for the time being
official positions, political or judicial, are summoned to advise the Crown, either in
matters of state or in matters of law. (Stephen's Coram., 4th ed., vol. 2, p. 467.)

The Political Committee. — The true Privy Council of the present day, and the
one referred to in the above clause, is the Cabinet. The Cabinet has been defined as the
political committee of the Privy Council, especially oi'ganized for the purpose of
advising the Crown, directing all public departments, and deciding all important
questions of administration, subject only to the approval of the House of Commons.
{Hearn's Government of England, p. 197. )

The Judicial Committee. — In Colonial causes the Privy Council had, from time
immemorial, both original and appellate jurisdiction.

" Whenever a question arises between two provinces out of the realm as concerning
the extent of their charters and the like, the King in his Council exercises oriqmal,
jurisdiction therein, upon the principles of feudal sovereignty. And so, likewise, when
any person claims an island or a province, in the nature of a feudal principality, by
grant from the King or his ancestors, the determination of that right belongs to the
sovereign in council ; as was the case of the Earl of Derby, with regard to the Isle of
Man, in the reign of Queen Elizabeth ; and the Earl of Cardigan and others, as repre-
sentatives of the Duke of Montague, with relation to the Island of St. Vincent, in 1764.
And to the same supreme tribunal there is, besides, in causes of a certain amount, au
appeal in the last resort from the sentence of every court of justice throughout the
colonies and dependencies of the realm. Practically, however, all the judicial authority
of the privy council is now exercised by a committee of privy councillors, called the
Judicial Committee of the Privy Council, who hear the allegations and proofs, and make
their report to Her Majesty in council, by whom the judgment is finally given."
<Stephen's Comm., 4th ed., vol. 2, p. 470-1.)

The statutory jurisdiction of the Privy Council was first regulated in 1833 by the
Act 3 and 4 William IV. c. 41, passed for the better administration of justice in the
judicial branch of the Council. Under that law the Judicial Committee of the Council
was definitely constituted. This tribunal was composed of the Lord President for the
time being of the Council, the Lord Chancellor, and such Privy Councillors as held or
had held office as Lord Keeper of the Great Seal, Chief Justice or judge of the Court of
Queen's Bench or Common Pleas, Chief Baron or Baron of the Court of Exchequer, the
Master of the Rolls, the Vice-Chancellor, the Judges of the Prerogative and Admiralty
Courts, and the Chief Judge of tlie Court in Bankruptcy. This Act was amended and
extended by 6 and 7 Vic. c. 38 (1843) ; 7 and 8 Vie. c. 69 (1844) ; 14 and 15 Vic. c. 83
(1851) ; 44 and 45 Vic. c. 3 (1881) ; 50 and 51 Vic. c. 70 (1887) : which contain a variety
of regulations prescribing the manner of conducting appeals from the colonies. At
common law, since modified by statute, the Privy Council had jurisdiction to entertain
appeals from the Lord Chancellor in matters of lunacy and idiocy, and in appeals from
the ecclesiastical and maritime courts, and in matters of patent and copyriglit. See
note, " Appeal to Queen in Council," § 310, injra.

The Erection of the Commonwealth. — Three distinct stages in the erection of
the Commonwealth are contemplated by this clause: — (1) The passing of the Imperial
Act, (2) the issue of the Queen's proclamation appointing a day within one year after
the passing of the Act, (3) the day when the people of the concurring colonies are

-§§ 23-25.]

COVERING CLAUSES. 331

united. These events and successive stages are not chronologically narrated in the
clause. It will be conducive to clearness to consider them in the order of time in which
they occur.

§ 23. " The Passing of this Act."

Before the Act 3.3 Geo. III. c. 13 (1793) every Act in which no particular time of
commencement was specified operated and took effect from the first day of that session
of Parliament in which it was passed. {Panter r. Attorney-General, 6 Brown's Cases in
Parliament, 486.) An Act which was to take eflfect from and after the passing of the
Act operated bj' legal relation from the first day of the session. (Latless r. Holmes,
4 T.R. 660.) But now, by 33 Geo. III. c. 13, where the commencement of an Act is not
provided for in the Act, the date endorsed on the Act, stating when it has passed and
received the Royal assent, is the date of its commencement. The Royal assent maj- be
given during the course of the session, in which the two Houses of Parliament concur
in it, or at the end of the session. The practice is to endorse on the first page of the
Act, immediately after the introductory title, the date of the Royal assent. The Royal
assent to an Imperial Act is given by the Queen in person or by commission ; if by com-
mission it is only given to such bills as may be specified in the schedule thereto.

This Act received the Royal assent on 9th July, 1900, which day is therefore the
<late of " the passing of this Act." But, although that date marks the commencement
of the Act, the Commonwealth is not established, nor does the Constitution take effect,
until the Queen has made a proclamation under the Act and the day fixed by that pro-
clamation for the establishment of the Commonwealth has arrived. The only immediate
consequences of the passing of the Act were — (1) That the Queen in Council was
empowered to issue a proclamation appointing a day, not later than one year after the
passing of the Act for the establishment of the Commonwealth (see § 24, " Procla-
mation "), and (2) that the Parliaments of the several colonies might proceed to pass
preliminary electoral laws and to make arrangements for the election of the first Federal
Parliament. In the Canadian Constitution it is expressly provided that the " sub-
sequent provisions " are not to commence or have affect until after the day appointed in
the Queen's proclamation for the establishment of the union.

§ 24. "Proclamation."

A royal proclamation is a formal announcement of au executive Act ; such as a
nnmons to or dissolution or prorogation of I'arliament ; a declaration of peace or war ;
! admonition to the people to keep the law or a notification of enforcement of the pro-
\ isions of a statute, the operation of which is left to the discretion of the Queen in
Council. The object of a royal proclamation is only to make known the existing law or
declare its enforcement ; it can neither make or unmake the law. (Ex p. Chavasse, re
Grazebrook, 34 L. J. Bk., 17 ) A proclamation is a resolution of the Queen in Council,
V. hich, as we have alreadj' seen, means the Cabinet. The document by which it is pro-
mulgated passes under the Great Seal. (Anson, Law and Custom of the Constitution,
Vol. II., p. 4.5.) It is announced through the official Government Gazette.

The proclamation referred to in this clause is one which it is in the discretion of the
'^•ueen, acting on constitutional advice, to issue subject only to the condition that the
'late fixed therein must be not later than one year after the passing of the Act.

§ 25. '*A Day therein Appointed."

Where an Imperial Act of Parliament is expressed to come into operation on a par-
ticular day, it is construed as coming into operation immediately on the expiration of
the previous day. Thus if the day appointed is the 1st January, the day begins at mid-
night, marking the end of 31st December. (Tomlinson v. Bullock, 4 Q.B.D. 230.) This
principle will apply to the daj- appointed in the Queen's proclamation. An expression

332 COMMENTARIES ON THE CONSTITUTION. [Cl.3.

of time in an Impei'ial Act, in the case of Great Britain, means Greenwich mean time
Definition of Time Act, 1880 (43 and 44 Vic, c, 9) ; Interpretation Act, 1889 (52 and 53
Vic, c. 63). On the day appointed by the proclamation, the following events are
declared to happen, viz. : —

(1.) The people of the colonies are united.

(2. ) The Commonwealth is established.

(3.) The Constitution takes effect.

(4. ) The electoral and other procedure laws passed by the Parliaments of the
federating colonies between ' ' the passing of the Act " and ' ' the day
appointed " come into operation.

§ 26. "The People . . . shall be United."

The formative words in this clause are more forcible, striking, and significant than
those of the corresponding parts of the Constitutions of the United States and of
Canada ; they indicate the fundamental principle of the whole plan of government, which
is neither a loose confederacy nor a complete unification, but a union of the people con-
sidered as citizens of various communities whose individuality remains unimpaired,
except to the extent to which they make transfers to the Commonwealth. In the Con-
stitution of the United States a union of the people of the States is referred to in the
preamble, and there only, in the form of a recital that the people have ordained and
established the Constitution in order to form a more perfect union. In the body of the
Constitution it is nowhere stated that the people of the States are or shall be united.
This was one of the ambiguities of the American instrument which helped to give rise to
the doctrine of nullification and secession, and, at last, to the Civil War. (See § 6,
*' Nullification and Secession.")

In the Canadian Constitution nothing is said about the union of the people ; it is
provided that on the day appointed in the Queen's proclamation " the provinces . . .
shall form and be one Dominion ;" the people are ignored ; the corporate entities of the
union alone are specified as its component parts. The individual human units, the vital
forces, the population of the provinces, are not even remotely alluded to. The vague-
ness of one and the deficiency of the other Constitution have not been allowed to dis-
figure the design of the Constitution of the Commonwealth. The union of the people of
the colonies is doubly asserted and assured ; first in the preamble, where it is recited
that "the people have agreed to unite," and secondly in this clause, in which it is
emphatically stated with mandatory force that on the day appointed they " shall be
united."

Western Australia . — The condition necessary for the establishment of Western
Australia as an Original State— that the Queen should be "satisfied that the people of
Western Australia have agreed thereto " — was fulfilled by the affirmative vote in that
colony on the Constitution, followed by addresses to the Queen passed by both Houses of
the West Australian Parliament. (See Historical Introduction, p. 2.50, supra.)

§ 27. "In a Federal Commonwealth."

The word " federal" occurs fifteen times in the Act, exclusive of references to the
Federal Council of Australasia Act, 1885 : —

(1.) Federal Commonwealth, Preamble and Clause 3.

(2.) Federal Parliament, sec 1.

(3.) Federal Executive Council, sees. 62, 63, 64.

(4.) Federal Supreme Court, sec 71.

(5.) Federal Courts, sec. 71.

(6.) Federal Court, sees. 73 — ii. ; 77— i. and ii.

(7.) Federal Jurisdiction, sees. 71, 73— ii., 77-iii., and 79.
The Federal idea, therefore, pervades and largely dominates the structure of the
newly-created community, its parliamentary executive and judiciary departments.

4 27.]

COVERING CLAUSES. 333

"Federal" generally means "having the attributes of a Federation." By nsage,
however, the term Federal has acquired several distinct and separate meanings, and is
capable of as many dififerent applications. In this Act, for example, the term Federal
is used first in the preamble, and next in clause 3, as qualitative of the Commonwealth,
considered as a political community or state ; in various sections of the Constitution it
is employed as descriptive of the organs of the central government. This use, in an
Act of I'arliament, of one term in reference to two conceptions so entirely dififerent as
state and government, is illustrative of the evolution of ideas associated with Federalism.
In the history of Federation the word seems to have passed through several distinct
stages or phases, each characterized by a peculiar use and meaning. At the present
time the several shades of thought which the word, according to usage and authority,
is capable of connoting are often blended and confused. These meanings may be here
roughly generalized as a preliminary to a separate analvsis : —

(1.) As descriptive of a union of States, linked together in one political

system.
(2. ) As descriptive of the new State formed by such a union.
(3. ) As descriptive of a dual system of government, central and provincial.
(4. ) As descriptive of the central governing organs in such a dual system of
government.
The first, and oldest, of these meanings directs attention emphatically to the pre-
aervation of the identity of the States ; the second implies a division of sovereignty —
State composed of States ; the third asserts that the duality is a matter of govern-
ment, not of sovereignty ; whilst the fourth asserts nothing, but is merely a convenient
arm of nomenclature.

(1.) A UxiON OF States. — The primary and fundamental meaning of a federation

Hfrom the LAtin fiedus, a league, a treaty, a compact ; akin to fides, faith) is its capacity

itid intention to link together a number of co-equal societies or States, so as to form one

nion political system and to regulate and co-ordinate their relations to one another ;

:her words a Federation is a union of States, subject to the preservation of state

ty and state individuality within defined limits. Such a luiion as that of the United

es called into existence a central government to deal with the general affairs of the

11, but there was some discussion and doubt among publicists whether, as its

Itant, it established a new State. The phrase " federal union," or the abstract noun

lerition," described the bond of union between the "United States," but was

t; as to whether the States so united formed a single composite State. It was con-

it^d that the union fell short of the attributes of a perfect State ; that the original

reignty of the component States remained unimpaired except to the extent of the

er transferred to the union— a doctrine which was the battle ground of parties in

laerica for many years before the Civil War. This was the sense in which the word

lederal " is used in the Federalist, and in the early constitutional history of the

nited States.

(2.) A Federal State. — In a secondary sense, the word "federal" is applied to ^

' omposite state, or political community, formed by a federal union of States. It
- describes, not the bond of union between the federating States, but the new State
Iting from that bond. It implies that the union has created a new State,
lOut destroying the old States ; that the duality is in the essence of the State itself
there is a divided sovereignty, and a double citizenship. This is the sense in
Inch Freeman, Dicey, and Bryce speak of a "Federal State ;" and it is the sense in
aich the phrase "a Federal Commonwealth" is used in this section and in the
eamble. The word " Federation," which was primarily s^Tionymous with the
•stract "federal union," is now frequentlv used as synonvm for the concrete "Federal
ate."

1 (3.) A Dcal System of Government. — In recent years it has been argued that
e word " federal " is inappropriately and inexactly used when applied to a State or

334 COMMENTARIES ON THE CONSTITUTION. [Cl.3.

community ; that there is no such thing as a federal State ; that if there is a State at all
it must be a national State ; that any political union short of the piincipal attribute of
statehood and nationhood, viz : sovereignty, is a mere Confederacy ; and that " federal"
can only be legitimately used as descriptive of the partition and distribution of powers
w hich is peculiar to a federal system. Federal, it is said, is properly applied to denote
a dual but co-ordinate system of government, under one Constitution and subject to a
common sovereignty, in which one State employs two separate and largely independent
governmental organizations in the work of government ; the whole governing system,
central and general, as well as provincial and local, constituting the federal government ;
the central and general government being one branch, and the provincial and local
governments forming the other branch of the governing organization. (Burgess,
Political Sci., I., p. 79; II., p. 18.) Hence, according to this view, the expression
" Federal Government " means not the central and general government alone, not the
provincial and local governments alone, but the governing system, central and general,
as well as provincial and local, as parts of one whole government under one Constitution.

(4.) Ckmtkal Government of a Dual System. — The term "federal" is often
used as descriptive of the organs of the central and general government, such as the
Federal Parliament, the Federal Executive, and the Federal Supreme Court. In this
sense the word is in common use in the United States as synonymous with national.
This use of the word has no important bearing on federal history or theory.

Federal and Confederate. — But in whichever of the above meanings the adjec-
tive "federal" is used, in modern usage it is distinguishaV)le from the adjective
"confederate." "Federal" is used of a type of union, or government, or State, in
which the general and local governments are co-ordinate within their respective spheres,
and both act directly on the citizens. " Confederate" is applied to a type of union, or
government, known as a confederacy, in which the central government is incomplete—
usually having only legislative powers— and its laws and ordinances are directed to the
States, not to the citizens. Such a union is little more than a league or treaty between
independent States, and does not create a new State, nor even, in the complete sense of
the word, a new government ; but merely provides a representative organization for the
purpose of promulgating decrees and making requisitions upon the members of the
league. It has no power to enforce its decrees or requisitions. This was the funda-
mental infirmity of the Confederacy of the United States which existed before the
adoption of the Federal Constitution.

Federal AND National. — The word " national " is frequently used in contrast
with the word " federal;" but the distinction between the two varies greatly according
to the meaning in which the word "federal" is used. A discussion of the two worda
may be best introduced by a reference to American usage.

United States.— In the Convention which framed the Constitution of the United
States, the resolutions adopted after full discussion showed that it was intended to
prepare a national plan of union and a national plan of government. In order, however,
to conciliate opposition and to avoid arousing the prejudices and fears of small States,
the use of the word " national" was eschewed. The word " federal" occurs in several
of the constitutional resolutions adopted by the Convention, and sucli expressions as
" perfect union," " within this union," " laws of the union," " United States," are to
be found in the Constitution ; yet strange to say the word " federal " does not appear in
any part of tlie document, although it is generally recognized that that Constitution w
the model of all modern federal governments.

From its adoption until the great Civil War, judicial, political and academical
writers usually abstained from employing the word " national " and substituted font
" federal." (Foster's Commentaries, vol. I., p. 91.) Since the Civil War the expressioo
" National Government " has come into general use in the United States " We Btill
ordinarily speak of federal practice in the federal courts. But as appeal's by the con-

§27.] COVERING CLAUSES. 335^

gressional resolution quoted at the beginning of this section, as well as in the debates in
the Convention, the phrase ' federal ' is not inconsistent with ' national.' " {Id., p. 92.)

Gariada. — In the Preamble to the British North America Act, 1867, it is recited
1 that the provinces have expressed their desire to be '• federally united in one Dominion
I under the Crown." This is the only pa.ssage in that Constitution in which there is any
express allusion to the Federal idea.

DiFFEREN'T Meaxixos. — The words " federal " and " national," therefore, may be
used either as mutually exclusive, or as partially overlapping. The firet meaning of
"federal," given above, either excludes or at least ignores an}' national element in
federalism ; it was the sense in which the word was used b}' the authors of the Federalist
and by early American writers before the trulj' national character of the American
Union was fully recognized and avowed. In that sense, therefore, " federal " denotes
the organic relation of the States to the Union ; whilst a community is described as
national in so far as its tendency is to unite individuals in one political State, and as its
government exercises direct power over individuals.

On the other hand, the second and third meanings recognize a national element in
federalism itself ; they affirm a duality, either of sovereign power or of government,
and recognize that national organization in matters of national concern is as much a
jpart of federalism as provincial organization in matters of provincial concern. This is
the more modern scope of the word, and accords not only with later English and
American usage, but with current usage in Australia. In this sense, the word national,
when used in contrast with federal, refers only to the extension of the national element
into the provincial area. In order to make clear these distinct conceptions of the scope
of federalism, we proceed to analyse the federal and national elements in the Constitu-
tion, according to both definitions ; first adopting the primary meaning of federal as

ribing a linking together of States, and then adopting the newer meaning as

ribing a dual system of government.

(1.) Federal axd National Elemexts : Primary Sexse. — Using "federal" in

i)rimary sense, the general difference between the federal and national elements of

Constitution of the Commonwealth may be thus defined. Those provisions are

lal which recognize the States as distinct but co-equal societies, uniting them as

s of, but not completely consolidated and absorbed in, the Commonwealth ; which

ird the people as inhabitants of States, separate and independent, within their

iiective spheres; which guarantee the preservation of State territory and State

lutonomy within defined limits ; which undertake to protect every State against foreign

ision and domestic violence; which secui-e certain specific political rights to the

tes ; which impose certain obligations and prohibitions on the States ; and which

tquire the assent of the States, considered as separate entities, to all the legislation of

he Commonwealth. Those provisions are national which unite the people of the

commonwealth as individual units and constitute them members of a common political

;roup, without reference to the State in which they reside ; which secure to the

esidents of all the States equality of rights without disability or discrimination

■hroughout the Commonwealth — or what in America is called a " common citizenship ;"

vhich regard the people as the principal source of supreme authority within the

i^ommouwealth requiring their representation in a special legislative chamber charged

rith certain dominant powers ; and above all which provide that the laws of the

commonwealth shall operate directly upon, and demand personal obedience from, the

leople in their personal and private capacities, and which provide special tribunals main-

'=>!ned by the Commonwealth for the interpretation and enforcement of its laws.

The combined operation of the federal and national principles of the Constitution is
j'.luatvated in the manner in which it was prepared, viz., by a Convention in which the
ieople of each colony were et[ually represented ; and in the method by which it was
fterwards submitted to the people of each colony for ratification or rejection. The

336 COMMENTARIES ON THE CONSTITUTION. [ci.3.

Federal Convention was not a body composed of delegates elected by the people of
Australia, as individuals, forming one entire community. The people of four colonies,
voting as provincial citizens, elected their representatives to the Convention to take part
in the framing of the Constitution. The people of six colonies, voting as provincial
citizens, subsequently ratified the Constitution. On the other hand, there is, in part, a
recognition of the national principle, by the Constitution being founded on the will of
the people, and not on the mandate of the provincial legislatures. The manner in which
the Constitution was submitted to the authority of the people is strongly suggestive of
a consolidating and nationalizing tendency. (Wilson in the Pennsylvania Convention ;
Elliot's Debates, 2nd ed., vol. II., p. 461.) It is obvious that the colonial legislatures
were not constitutionally entitled to surrender to the proposed Commonwealth part of
the legislative powers vested in them by Imperial Acts, and that not even the Imperial
Parliament would be disposed to revolutionize the Constitution of the Australian
colonies, without being assured by the strongest possible evidence and the best available
demonstration, that the people of those colonies had freely and voluntarily agreed to the
reform and readjustment of the system under which they had lived so long.

There is, at the same time, a conspicuous recognition of the federal principle in the
fact that the people of each colony voted for or against the Constitution as provincial
voters, a majority being required in each colony to carry the Constitution in that
colony. As, in the ratification of the Constitution of the United States, each State con-
vention acted and claimed to act only for and in the name of the people of that State
(Foster's Commentaries, vol. I., p. 95) ; so, in the ratification of the Constitution of the
Commonwealth, there was an independent referendum in each colony, in order to ascer-
tain and give legal voice to the will of the people of that colony, without regard to the
will of the people of the other colonies. The Constitution was, therefore, not adopted
' by the people of the Commonwealth, that was to be, voting en masse or at large or in
I their aggregate capacity, but by the people of the future States voting in each State as
I inhabitants thereof. The Constitution was framed by a combined power exercised by
the people of each colony ; in the first instance through their representatives in the Con-
vention, limited in their sanctions, and in the last resort by the people of each colony
voting at the referendum held in each colony. Had the Constitution emanated from the
people, regardless of their provincial distribution, and had the colonies been referred to
and used merely as convenient electoral districts by which the public expression could
be ascertained, the popular vote throughout the union would have been the only rule for
its adoption. (Madison, in The Federalist, No. xxxix., pp. 2.37 and 238; Foster's
Commentaries, vol, I., p. 106.) If a general vote had been accepted as the test, the
Constitution would have been triumphantly adopted on .3rd June, 1898, when the voting
was —

Yks 216,332

Noes 107,497

Majority 108,835

The vote of the people, however, was limited to the respective States in which
they resided, and in some cases artificial statutory majorities were required, so that
there was an expression of popular suffrage and State sanction united in the method in
which the adoption of the Constitution was secured. (See the judgment of Mr. Justice
McLean in Worcester v. Georgia, 6 Peters, 515-569 ; see also Ware v. Hylton, 3 Dallas,
199, Chisholm v. Georgia, 2 Dallas, 419.)

Federal Stnicture of the Commoninealth. — The Commonwealth as a political society
has been created by the union of the States and the people thereof. That the States
arc united is proved by the words in clause 6, which provide that the States are "part*
of the Commonwealth ;" that they are welded into the very structure and essence of
the Commonwealth ; that they are inseparable from it and as enduring and indestructible
as the Commonwealth itself ; forming the buttress and support of the entire constitu

•§ 27.]

COVERING CLAUSES. 337

tional fabric. This is a federal feature which peculiarly illustrates the original and
primary meaning of the term, as importing a corporate union. The Commonwealth,
however, is not constituted merely by a union of States ; it is something more than
that ; it is also a union of people.

Federal Structure of the Parliament. — As the Commonwealth itself is partly
federal and partly national in its structure, so also is its central legislative organ the
Parliament. Each original State is equally represented in the Senate ; the right of
State representation is embedded in the Constitution and does not depend on inference
or implication. The Senate derives its power from the States, as political and co-
ordinate societies, represented according to the rule of equality. (Madison, in The
Federalist, No. xxxix., pp. 237-8.) In this manner the States become interwoven
and inwrought into the very essence and substance of the Commonwealth, constituting
the corporate units of the partnership as distinguished from its personal units, the
people. Thus the Commonwealth is buttressed by the States and vitalized by the
people.

National Structure of the Parliament. — The House of Representatives is the
national branch of the Federal Parliament, in which the people of the Commonwealth
are represented in proportion to their numbers. This great Chamber will give direct
ixpression and force to the national principle. As such, its operation and tendency
will be in the direction of unitication and consolidation of the people into one integrated
hole, irrespective of State boundaries, State rights, or State interests. If there were
Illy two chambers in which the people were represented in proportion to their numbers,
his would undoubtedly have tended towards the establishment of a unified form of
jovemment, in which the States, as political entities, would have been absolutely
Ltnrecognized, and would have been liable, in the course of time, to effacenient. The
3(mvention was entrusted with no such duty ; under the Enabling Acts, by which it
as called into existence, its mandate was to draft a Constitution in which the federal,
I well as the national elements, were recognized.

State Bights — Federal. — The sections which guarantee equal representation in the
imate and a minimum representation in the House of Representatives ; which enable
im Governors of States to issue writs for the election of Senators and to certify their
slection to the Governor-General ; which require the Governor of a State concerned to
16 notified of vacancies in the Senate ; which continue State Constitutions except so far
they are inconsistent with the Constitution of the Commonwealth and its laws ;
vhich continue the power of State Parliaments except to the extent to which it has
\vilhdrawn from them or vested in the Commonwealth : which continue State laws
■e until provisions inconsistent therewith are legally made by the Federal Parlia-
t ; which preserve to each State the right to have direct c-ommunication with the
Jueen on all State questions ; are examples of State rights secured by pro^•isions of a
ederal character.

State InhlhitioHS — Federal, — Of a similarh' Federal character, although imposing
.isabilities, instead of confeixiug rights, are various sections forbidding the States from
ranting bonuses and bounties for trade purposes after a certain time ; from making
ailvay rates which operate as preferences and discriminations ; from raising or main-
aimng naval and military forces ; and from coining monej*.

Nationalism in the Executive. — The Executive government created by the Swiss
jOostitution is a peculiar bleud of the federal and national elements. In its mode of
lection by the Federal Assembly, composed of the National Council and Council of
tates, sitting and voting together in joint session, the Swiss executive is the choice of
blended body in which the majority of the nation is likely to predominate ; but the
sstnction that not more than one member of the executive can be chosen from the
«ne canton renders the executive largely federal in its composition and spirit. The
xecutive of the United States is likewise partly fedei-al and partly national in its
22

338 COMMENTARIES ON THE CONSTITUTION. [Cl.3.

formation. The immediate election of the President is vested in the people ; but the
people do not vote en masse, but in groups as States ; votes are allotted to them in a
compound ratio which considers them partly as distinct and co-equal societies, and
partly as unequal members of the same society. In a certain event the election is made
by that branch of the legislature which consists of the National representatives ; but in
so choosing the President the votes are taken by States, the representation from each
State having one vote ; in this way they again act as so many distinct and co-equal
bodies politic. It thus appears that the]executive government of the United States is of
a mixed character, presenting at least as many federal as national features. (Madison,
in The Federalist, No. xxxix., pp. 237-8 ; Foster's Comm., I., p. 106.)

The Executive of the Commonwealth is, in the Constitution, styled a "Federal
Executive." There is reason to believe that the word federal is there used in a sense
approximating to " National," already explained as one of the several meanings of the
term. In the appointment and composition of the executive of the Commonwealth no
hard and fast rules are laid down. Nominally the ministers of the Commonwealth will
be chosen and appointed by the Governor-General ; but his choice will be, in practice,
confined to those statesmen who are able to command the confidence and secure the
support of the House of Representatives, and who at the same time will be able to
maintain the harmony and co-operation of the two Houses in the work of carrying on
the business of the country.

Nationalism in the Judicial System. — The Constitution is National so far as it
makes the laws of the Commonwealth binding on the people. Courts and Judges of
every State ; so far as the High Court has jurisdiction (sec. 73 — ii.) to hear and deter-
mine appeals from State courts on questions of State laws ; so far as the High Court
has original jurisdiction (sec. 75) in certain classes of matters ; so far as the Parliament
has power to make laws (sec. 76) conferring original jurisdiction on the High Court in
certain other classes of matters ; so far as the Federal Parliament has power (sec. 77
iii.) to nationalize State courts by investing them with Federal jurisdiction.
jt Federalism in the Judicial System. — The Constitution is federal so far as it pre-
serves the operation of State laws, not inconsistent with Conmionwealth laws ; so far as
the State courts have exclusively original and primary jurisdiction to entertain matters
in which State laws are involved ; so far as it provides that the trial, on indictment, of
an ofTence against any law of the Commonwealth shall be held in the State where the
offence was committed (sec. 80).

Amendment — Federal and National. — "If we try the Constitution by its last
relation to the authority by which amendments are to be made, we find it neither
wholly national nor wholly federal. Were it wholly national, the supreme and ultimate
authority would reside in the majority of the people of the Union ; and this authority
would be competent at all times, like that of a majority of every national society, to
alter or abolish its established government. Were it wholly federal, on the otlier hand,
the concurrence of each State in the Union would be essential to every alteration that
would be binding on all. The mode provided by the plan of the Convention is not
founded on either of these principles. In requiring more than a majority, and parti-
cularly in computing the proportion by States, not by citizens, it departs from the
national and advances towards the federal character ; in rendering the concurrence of
less than the whole number of States sufficient, it loses again the federal and partakee
of the national character." (Madison, in The Federalist, No. xxxix., p. 237-8 r
Foster's Comm., I., p. 106.)

Composite Character oj the Coiutitution. — In the primary sense of the worrt
" federal," therefore, the Constitution of the Commonwealth is a remarkable compound
of the federal and national elements. It is not wholly National, it is not wholly
Federal, but a compound of both. In the sources from which the ordinary powers of
government are drawn, people and States, it is partly federal and partly national ; m

§ 27.] COVERING CLAUSES. 339

the operation of its laws on individiiala it is national and not federal ; in the appoint-
ment and tenure of its Executive it is national and not federal ; in the wide jurisdiction
of its judiciary it is more national than federal ; in its guarantee of State rights it is
federal ; in its imposition of disabilities on States it is federal ; and finallj- in the
authoritative mode of carrying amendments bj' requiring a majority of all votes, as well
as majorities of the people voting in the majority of States, it is partly federal and
partly national. (Madison, in The Federalist, No. xxxix. ; Lodge's ed., p. 239.)

(2.) Feder.al and Xatiosal : Newek Sense. — We may now analyse the federal
and national elements of the Constitution in the more modern sense ; describing as
federal those features in which the structure of the centi-al organs of government, and
the distribution of powers between the central and local governments, recognize the
duality of national and provincial interests ; and describing as national those features in
which this duality of interest is not recognized.

Structure of the Federal Parliament. — The structure of the two Houses of Parlia-
ment is completely federal — the House of Representatives embodying the national aspect,
and the Senate the provincial aspect, of the federal duality. But in the exclusive
powers of the House of Representatives with regard to the initiation and amendment of
money bills there is a predominating national element ; and this is still further
emphasized in the "deadlock clause" (sec. 57), which is designed to ensure that a
decisive and determined majority in the national chamber shall be able to overcome the
resistance of a majority in the pro\-incial chamber.

Structure of the Federal Executive and Judiciary. — The other two departments
show, in their composition, no sign of the federal duality. It has indeed lieen argued
that the political necessity of securing the assent of both Houses to government legis-
lation will place the Executive practically under a double control ; but even if this were
~ >, it would affect legislative policy rather than the execution of the laws. In fact, so
f as the structure of the organs of government goes, the federal element has its strong-
liuld in the legislative organ. In the making of laws, even within the sphere entrusted
to the national legislature, it was felt that pro^^ncial interests should be represented ;
but the execution and interpretation of those laws, when made, was recognized to be a
national matter alone.

Powers of the Federal Parliament. — It is in the distribution of legislative powers
Ijetween the Federal Parliament and the State Parliaments that the fundamentally
federal basis of the Constitution is most apparent ; yet even here there is a distinct pre-
dominance of the national element. Looking down the sub-sections of sec. 51, we find
tiiat in many of them the principle of duality is expressly recognized, and the exclusive
(lumestic jurisdiction of the States expressly reserved. For instance, the trade and
commerce power is confined to inter-State and foreign trade and commerce, and it is
hedged in (Chap. IV. ) with a number of minute restrictions to prevent injustice or dis-
crimination as between States. The federal power of imposing taxation and granting
junties is similiarly hetlged about with conditions for the protection of the States. In
>ub-sec. X., the power over fisheries is confined to waters beyond territorial limits — the
territorial rights of the States being thus reserved. In sub-sees. xiii. and xiv., the
iKjwers as to Banking and Insurance also contain a reservation of State rights. In
- lb- sec. XXXV., power to deal with conciliation and arbitration is only given in the
Lase of inter-State industrial disputes, and so on. In all these cases, the duality of
interest is recognized in the verj- gift of the power to the Federal Parliament, and the
distribution of power is thus essentially federal. But in most of the sub-sections this
nice analysis is not found. The advantages of uniform legislation, especially in matters
relating to commerce, have prevailed over the sentiment of local independence ; and we
tiad that if a subject has, on the whole, a national aspect, it is handed over uncon-
ditionally to the national legislature. Thus posts and telegraphs, defences, quarantine,
currency, weights and measures, bills of exchange and promissory notes, bankruptcy'
and insolvency, copyrights, patents, and trade-marks, naturalization and aliens, trading

340 • COMMENTARIES ON THE CONSTITUTION. [Cl. 3.

and financial corporations, marriage and divorce, and other subjects, are made uncon-
ditionally national. No State reserves any rights with respect to its internal posts and
telegraphs, or of marriages between its own citizens ; on all these subjects the distinction
between internal and inter-State jurisdiction is abolished. These subjects are not
federalized, but nationalized — or at least, the power to nationalize them is given to the
Federal Parliament.

Power n of the Federal Executive. — The executive power is of course co-extensive
with the legislative power. It extends to the execution of the laws made bj- the Par-
liament. Consequently it combines federal and national features in exactly the same
way.
-^ Powers of (he Federal Judiciary. — The original jurisdiction of the federal courts is

based entirely on the dual principle of distribution of powers. It embraces at the outset
five classes of matters, of a specially federal character, and can onlj' be extended by the
Parliament to four other classes of matters of a federal character. In all other matters
the original jurisdiction of the State courts is exclusive.

The appellate jurisdiction of the Higli Court, on the other hand, is completely
national— and is in fact the most national element in the whole Constitution. It extends
— subject only to partial limitation by the Federal Parliament — to cases of every
description decided by the Supreme Courts of the States, whether of federal concern or
not. The High Court is, in fact, not a federal court of appeal, but a national court of
appeal.

The Amending Poicer. — Lastly, with regard to the power of amendment, the Con-
stitution is federal. In the initiation of amendments the dual principle is recognized in
the power given to either House — the House representing the Nation, or the House
representing the States — to submit a proposal to the Referendum. And at the
Referendum, the dual principle is further recognized by the power of veto given both to
a majority of the people and to a majority of the States.

Composite Character of the Constitution. — It thus appears that even according to
the more modern meaning of the word "federal" — which recognizes the national as
well as the provincial elements of federalism — the Constitution maj' be described as
partly federal and partly national. That is to sa}', it contains not only those national
elements which appertain to a pure Federation, but also some furtlier national elements
which appertain rather to a Unification. This is especially the case with regard to the
wide extent of some of its legislative powers, and with regard to the unlimited appellate
jurisdiction of the High Court.

The EvoiiUTiON of Nationalism. — Whilst the life of the Commonwealth will
begin with a clear diflferentiation of function and status, as between it and its corporate
units, the States, it does not follow that the outlines and objects of that differentiation
will be distinctly and permanently preserved. There will be, at tlie outset, a clear
demarcation of spheres, a clear delimitation of powers separating the Central Govern-
ment from the State Governments ; but the initial law must not be regarded as expressing
a relationship as unchanging as the laws of the Modes and Persians. The Constitution
will bo capable of change and evolution, arising from the altered conditions of the
people whom it is designed to govern. It will be a living organism, animated and
dominated by the pulsations of vital forces inherent in every community. It must not
be considered as expressing finality in form or principle. If it attempted to restrict the
potentialities of future growth and expansion, it would stand self-condemned, as
antagonistic to reason, and blind to the lessons and experience of the past. It does not
do so. For some years the national principles may be weak or dormant — the occasion
may not arise to call them into marked activity. Nations are made only by great
occasions, not by paper constitutions. But the energy will be there, and in the fulnest
of time, when the opportunity comes, the nation will arise like a bridegroom coming
forth from his chamber, like a strong man to run a race. This change will not

§27.1

COVERING CLAUSES. 341

necessarily imply any conflict with the States, because the people of the States, who
are also the people of the nation, will throb with the new life, and will be disposed to
yield to the irresistible pressure of nationhood. In the adaptability of the Constitu-
tion, and (should need arise) in the power of amending the Constitution — the facilities
for which are far greater than in the United States— there is ample room for the growth
and development of such tendencies as may assert themselves in the present or the
distant future of the Commonwealth. The Constitution will come into operation under
the fair and well-distributed influence of two forces. One of those forces will be the
centralizing attraction of the Commonwealth, and its tendency to detract from the
power and dignity of its corporate units the States. The other will be the centrifuga I
disposition of the States. They will desire to retain their constitutional status unim-
paired— to assert State rights and State interests in the Senate — to subordinate
Commonwealth policy, and restrict encroachment and invasion bj' the Central Govern-
ment on the provincial spheres. In this struggle and competition for supremacy it
would, without the aid and enlightenment of experience in other countries, be difficult to
conjecture whether in the end the State or tlie national principle would conquer.
Securely entrenched in the Senate behind the ramparts of equal representation, it
might be argued that the States would in the end "boss" the Federal legislative
machine, and either clog it altogether, or mould its decrees to suit the views of a majority
of States, regardless of the interests of the people of the Commonwealth as a whole.

That, however, has not been the experience of the Federal Republic of the United
States of America, from which we have copied the principle of equal State representa-
tion and the recognition of the States as integral parts of the Federal Union. Mr. Bryce
saj's that — except during the slaverj* struggle, when the Senate happened to be under
the control of the slave-holders, and when it asserted State rights and State sovereignty
— the Senate has never been the stronghold of small States, for American politics have
never turned ou the antagonism between two sets of Commonwealths, but rather on the
conflicts of parties. The national spirit which was growing as a silent force, after a
long battle with the doctrine of State sovereignty, eventually emerged safely and soared
victoriously over all opposition. The latent ambiguity in that Constitution as to
whether the United States formed a compact dissoluble at will, or whether it was an
indestructible union of indestructible States, was for ever swept away by the Civil War ;
it was that ambiguity alone which gave rise to the doctrine of secession and nullification
w hich caused the war. After the war there 3et remained the question whether the
itional element would, as a silent force, acting without any express amendment, prove
re potent and assertive than the State element.
A few years before 1889, when Mr. Bryce published his book, the American
Protestant-Episcopal Church, at its annual Convention, introduced, among the short
sentence prayers, one suggested by an eminent New England divine, in these words : —
"0 Lord, bless our nation." Next daj' the prayer was brought up for re-consideration,
when so many objections were raised by the laity to the word nation as importmg a
recognition of national unity that it was dropped, and instead there were adopted the
words, "0 Lord, bless the United States." (Amer. Comm., I., p. 12.)

The True Ideal of Federalism. — The drift of the development of the American
Constitution is indicated in the following extracts from an essay entitled " The Ideal
American Commonwealth," written by Dr. Burgess and published in the "Political
Science Quarterly Review," vol. 10: —

" I do not think that it need be feared that the doctrine of the sovereignty of the
yeral states will again seriously threaten this development. The Civil War fixed the
pnnciple of our polity, that the 'nation alone is the sovereign, that the nation alone is
the real state. We do still hear, indeed, the phrase ' sovereignty of the states within
:heir respective spheres : ' but this only signifies that we have not yet invented the new
•°™'^of expression to fit the new order of things. All that we can now mean by the
Md phrase is : that realm of autonomv reserved to the states by the sovereignty of the
lation declared through the constitution " (pp. 408, 410).

342 COMMENTARIES ON THE CONSTITUTION. [Cl. 3.

" The language of the constitution of 1787 may be construed, and I think should be
construed, as changing a confederacy of sovereignties into a national state with federal
government, that is with a system of government in which the powers are distributed
by the national constitution, either expressly or impliedly, specifically or generally,
between two sets of government organs, largely independent of each other. Yet, on
the other hand, it may be construed with much show of logic as having simply substi-
tuted the people of the several states for their legislatures, that is for the organic bodies
in the confederate constitution of 1781. . . . But I think this theory is now wholly
erroneous. It will not fit facts of our history since 1860. Those facts can be explained
only upon the theory that federalism with us now means a national state, with two sets
of governmental organs, largely independent of each other, but each deriving its
powers and authorities ultimately from a common source, namely, the sovereignty of
the nation. And this conception of a governmental system I claim to be purely an
American product. It is, however, the true ideal of federalism, and all other nations
must, 1 believe, ultimately come to it. It reconciles the imperialism of the Romans,
the local autonomy of the Greeks, and the individual liberty of the Teutons, and
preserves what is genuine and enduring in each." {Id. 416.)

§ 28. "Appoint a Governor- General."

" Formerly each colonial governor was appointed by special letters-patent under
the Great Seal which defined his tenure of office and the scope of his powers and duties.
As the preparation and issue of these formal and authoritative instruments usually
takes considerable time, it became the practice, prior to the year 1875, to issue a minor
commission, under the royal sign-manual and signet, to a newly appointed governor,
empowering him, meanwhile, to act under the commission and instructions given to his
predecessor in ofiice. But doubts having been raised in certain cases, whether these
minor commissions effectually authorized the holder to perform all the duties and
functions appertaining to his office, it was in 1875 deemed expedient by Her Majesty's
government, under the advice of the law officers of the Crown, to issue, on behalf of
each colony of the empire, letters-patent constituting permanently^ the office of governor
therein ; and providing that all future incumbents of this office should be appointed by
special commission under the roj'al sign-manual and signet to fulfil the duties of the
same, under the general authority and directions of the letters-patent aforesaid, and of
the permanent instructions to bo issued in connection therewith. But, before intro-
ducing this change, a circular despatch, dated October 20, 1875. was addressed to all
colonial governors, enclosing a copy of the proposed new forms, and inviting suggestions
to be submitted by the governor, after consultation with his responsible ministers, for
such alterations as might appear to them to be speciallj'' advisable in the case of the
particular colony." (Todd's Parliamentary Government in the Colonies, p. 77-8.)

The results of the interchange of views between the Colonial Secretary, Earl
Carnarvon, and the government of the Dominion of Canada, was that it was resolved to
make a considerable modification in the manner of constituting the office of the Queen s
representative in British Colonies and possessions, and in the manner of filling the office
and instructing the incumbent of the office in the method of discharging his duties. It
was decided to constitute the office in each colony and possession by letters-patent under
the Great Seal of the United Kingdom, so drawn as to be of general application to
future incumbents of the office and to make permanent provision for the execution of its
duties. Accompanying the letters-patent instituting the office there was to be a code of
instructions passed under the royal sign-manual and signet, addressed to the governor
for the time being or in his absence to the officer administering the government.
Appointments were to be made to the governoi-ship as vacancies arose by a conmiission
under the roj'al sign-manual and signet. At the instance of the Government of tlie
Dominion, alterations were made in the instructions accompanying the letters-patent
constituting the office of Governor-General of Canada.

The principal mandates in the old instructions were these: — (1) Relating to the
exercise of the prerogative of mercy by the Governor with or without the advice of ni»
ministers, (2) giving directions concerning the meetings of the Executive or Privy
Council, (3) authorizing the Governor in certain contingencies to act in opposition to the
advice of his ministers, and (4) prescribing the classes of Bills to be reserved for
Imperial consideration.

^§ 28-29.]

COVERING CLAUSES. 343

The new practice was not inaugurated in Canada, nor were the alterations in the

'■'Ktructions promulgated, until the Marquis of Lome was appointed to the office of

\ ernor-General of Canada, in succession to Lord DufiFerin, when three new instru-

iits were drawn up, viz. : — Letters-patent, dated 5th October, 1878; instructions

' •■aring even date ; and Lord Lome's commission, bearing date 7th October, 1878.

Commencement of Act.

4. The Commonwealth shall be establishecP, and the
Constitution of the Commonwealth shall take effect^, on and
after the day so appointed. But the Parliaments of the
several colonies may at any time after the passing of this Act
make any such laws^\ to come into operation on the day so
appointed, as they might have made if the Constitution had
taken effect at the passing of this Act.

UsiTKD States.— The Ratification of the Conventions of nine States shall be sufficient for the
establishment of this Constitution between the States so ratifnng the same. — Const.,
Art. VII.

Casada.— The subsequent Provisions of this Act shall, unless it is otherwise expressed or
implied, commence and have effect on and after the Union, that is to say, on and after the
da}' app)ointed for the Union taking effect in the Queen's Proclamation ; and in the same
Provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to
mean Canada as constituted under this Act. — B.N.A. Act, sec. 4.

Historical Note. — Clause 4 of the Commonwealth Bill of 1891 was as follows : —

'* Unless where it is otherwise expressed or implied, this Act shall commence and
'6 eflFect on and from the day so appointed in the Queen's proclamation ; and the name
i iie Commonwealth of Australia ' or ' The Commonwealth ' shall be taken to mean the
inmonwealth of Australia as constituted under this Act."

This clause, with the omission of the second word " where," was adopted at the
' lelaide Session, 1897. Air. Carruthers suggested that the introductory words were
-ue ; and Mr. Kingston pi'oposed to substitute " Except in regard to section 3, which
d[ come into operation at the passing of the Act." This was negatived. {Conv.
Ij., Adel., pp. 62 1-5.) At the Sydney Session, following the suggestions of the Legis-
ares of New South Wales and Tasmania, the words " unless it is othenv'ise expressed
implied, this Act " were omitted, and the words " The Constitution of the Common-
ilth" were substituted. A provision was then added that "The Parliaments of the
eral colonies may at any time after the passing of this Act make any such laws, to
lie into operation on the daj- so appointed, as they might have made if the Consti-
ion had been'established at the passing of this Act." (Conv. Deb., Syd. [1897], pp.
>-31.) At the Melbourne Session, verbal amendments were made before the first
lort and after the fourth report.

.§ 29. '« Shall be Established."

Clause 3 says that the people of the Commonwealth shall be united on and after the

y appointed in the Queen's Proclamation. Clause 4 contains a detailed enumeration

1 elaboi-ation of the legal results of the Union so accomplished. The first immediate

I necessary result is that the Commonwealth is established. The constitutional

inition of the Commonwealth will be anahsed later on. Meanwhile, attention maj'

Irawn to the significance of the word " Established." The same verb is used in the

preamble to the constitution of the United States, where it is recited that in order to

form a more perfect union the people " do ordain and establish this Constitution."

The word "Established" is used in the enacting passages of several State Consti-
tutions, such as those of Pennsylvania, Vermont, and Massachusetts. (See § 17,
"Commonwealth," supra.) In some of the constitutional Acts passed by the British

344 COMMENTARIES ON THE CONSTITUTION. [ci. 4,

Parliament authorizing the formation of colonies, the words "erect" and "establish"
are used as synonymous terms. The Act 9 Geo. IV. c. 83, sec. 1 (1828), provided that
it should be lawful for the King by charters or letters patent under the Great Seal to
"erect and establish" courts of judicature in New South Wales and Van Uiemen's
Land. The Act 3 and 4 Vic. c. 62, sec. 2 (1840), authorized the Queen by letters patent
to " erect " into a separate colony or colonies any islands being dependencies of the
colony of New South Wales ; and by section 3, in case Her Majesty should establish any
such new colony or colonies. Legislative Councils might be " established " therein.

The Act 5 and 6 Vic. c. 76, sec. 51, enabled the Queen by letters patent to erect
into a separate colony or colonies any territories of the colony of New South Wale*
lying northward of 26" south latitude. By section 34 of 13 and 14 Vic, c. 59, that pro-
vision was amended so as to enable the Queen to detach territories of New South Wales
lying northward of 30° of south latitude and to " erect " them into a separate colony or
colonies or to include the same in any colony or colonies to be " established" under 3
and 4 Vic. c. 62, sec. 2.

In the first section of the notable Act 13 and 14 Vic. c. 59, the provision occura
that the territories comprised in the district of Port Phillip should be "erected" inta
and thenceforth form a separate colony to be known as the colony of Victoria. In the
second section of rhe same Act the words occur " that upon the issuing of such writs for
the first election of members of the Legislative Council of the said colony of Victoria
such colony shall be deemed to be established." From thesp precedents it appears that
the word "Established" is the one commonly used to denote the creation of a new
State or community.

§ 30. '' Shall take Effect."

Another consequence and necessary incident of the Union is that the Constitution
shall on the daj- so appointed "take effect " or come into operation. Here we reach the
third and final stage in the progress of political organization contemplated by the Act.
It clearly appears that the Constitution is something distinct from the Commonwealth.
The Commonwealth is the community united by the Imperial Act. The Constitution
provides the necessary machinery for the government of that community so as to secure
its continuity, safety and development. The provision of Clause 3 that the Queen may
appoint a Governor-General for the Commonwealth at any time after the issue of the
Pi'oclamation, and before the actual establishment of the Commonwealth and before the
Constitution " takes effect," is somewhat incongruous and looks like an inteipolation
out of harmony with the sequence of the other initiatory stages. It enables the Queen
to appoint a Governor-General, not for an actual existent Commonwealth, not to fill an
office created by a constitution actually in force, but for the Commonwealth that is to
be, and in order to fill an office that does not yet exist.

§ 31. '< May make any such Laws."

At any time after the passing of the Act, and therefore before as well as after the
day appointed by the Proclamation, the Parliament of each of the federating colonies
may proceed to exercise certain powers intended by the Constitution to be conferred
upon them. The Constitution, by which these powers are defined, does not take effect
until the day appointed by the Proclamation. In anticipation of that day the Act
authorizes the Parliaments to exercise the powers referred to, but the laws when passed
in the exercise of those powers do not come into force until the arrival of the day
appointed by the Proclamation. Turning to the Constitution we find that the laws
referred to by this clause comprise the following : —

(1.) Laws prescribing the method of choosing the Senators for a Stute. —
Sec. 9.

§ 31.] COVERING CLAUSES. 345

(2.) Laws for determining the times and places of election of Senators for a

SUte.— Sec. 10.
3.) Laws for determining the divisions in each State for which il embers of the-

House of Representatives may be chosen, and the number of Members to

be chosen for each division. — Sec. 29.
(4 ) Laws of the Parliament of Queensland for determining the divisions in that

State for which Senators may be chosen, and the number of Senators to

be chosen for each division. — Sec. 7.

Operation of the Constitution and Laws.

5. This Act^-, and all laws** made by the Parliament of
the Commonwealth under the Constitution, shall be binding
on the courts, judges, and people^ of every State and of
every part of the Commonwealth^, notwithstanding anything
in the laws of any State^ ; and the laws of the Common-
wealth^ shall be in force on all British ships^, the Queen's
ships of war excepted*", whose first port of clearance** and
whose port of destination are in the Commonwealth.

UxiTBD States.— This Constitution, and the Laws of the United States which shall be made in
pursuance thereof, and all Treaties made, or which shall be made, under the Authority of
the I'niced States, shall be the su)>reme Law of the Land ; and the Judsres in everj- State
shall be bound thereby, any thing in the Constitution or Laws of any State to the con-
trary notwithstanding. — Const., Art. VI., sec. 2.

The powers not delegated to the United States by the Constitution, nor prohibited bj-
it to the States, are reserved to the States respectively, or to the people. — Amendment X.

SwiTZKRLAXD.— The Cantons are sovereign, so far as their sovereigntj- is not limited by the
Federal Constitution : and, as such, they exercise all the rights which are not delegated to
the federal government.— Const., Art. 3.

Germasv. — . . and the laws of the Empire shall take precedence of those of each indi^idual
State.— Const., Art 2.

Historical Xote. — Clause 7 of the Commonwealth Bill of 1891 was as follows : —

" The Constitution established by this Act, and all laws made by the Parliament of
the Commonwealth in pursuance of the powers conferred by the Constitution, and all
treaties made by the Commonwealth, shall, according to their tenor, be binding on the
courts, judges, aud people of every State, and of every part of the Commonwealth, any-
thing in the laws of any State to the contrary notwithstanding ; and the laws and
treaties of the Commonwealth shall be in force on board of all British ships whose last
oort of clearance or whose port of destination is in the Commonwealth."

This clause was based in part upon sec. 20 of the Federal Council of Australasia
^ct, 1885 i48 and 49 Vic. c. 60), which was as follows :—

" All Acts of the Council, on being assented to in manner hereinbefore proWded,
hall have the force of law in all Her Majesty's possessions in Australasia in respect to
vhich this Act is in operation, or in the several colonies to which they shall extend, as
he case maj' be, and on board of all British ships, other than Her Majesty's ships
f war, whose last port of clearance or port of destination is in any such possession or
olony.-'

The provision as to British ships in the Federal Council Act was not included in the
tt of that Act framed at the Sydney Conference in 1883, but was inserted by the
.perial draftsmen.

At the Sydney Convention, 1891, there was some discussion as to this provision.
nv. Deb, S>d., 1891, pp. 558-60.) At the Adelaide session, 1897, the clause as
pted in 1891 was introduced verbatim. The provision as to British ships was again

ussed. It was thought to be much too wide, and was even criticized as "sheer
iseuse," but being sanctioned by the Federal Council Act, it was not altered.
•nv. Deb., Adel., pp. 626-8.) At the Sydney session, a suggestion by the Legislative

346 COMMENTARIES ON THE CONSTITUTION. [Cl. 5.

Council of New South Wales, to omit the words " and treaties made by the Common-
wealth," was agreed to. Mr. Raid moved to omit the whole provision as to British
ships ; but this was thought to be going too far, and he withdrew it. The words "and
treaties" were omitted ; the words " excepting Her Majesty's ships and vessels of war"
were inserted ; and the final words were altered to read : " whose first port of clearance
and whose port of destination are in the Commonwealth." (Conv. Deb., Syd., 1897,
pp. 239-53 ) At the Melbourne session, drafting amendments were made before the first
report and after tlie fourth report.

When tlie Commonwealtli Bill was first under the consideration of the Imperial
Government in England, it was proposed by the Law Officers of tlie Crown that this
clause should be amended by omitting the words "in force on all British ships, the
Queen's ships of war excepted, whose first port of clearance and whose port of destina-
tion are in the Commonwealth," and by adding the words : " and the Laws of the
Commonwealth shall be Colonial laws within the meaning of the Colonial Laws Validity
Act, 1865." (See House of Coms. Pap., May, 1900, p. 19; Historical Introduction,
p. 229, supra.) In the Bill as introduced into tlie House of Commons the clause was
restored to the shape in which it was originally passed by the Convention, with the
addition of a new paragraph relating to the prerogative of appeal, which was after-
wards omitted in Committee. (See Historical Introduction, pp. 242, 248, supra.)

§ 32. " This Act."

The expression "This Act" occurs in Clauses 1, 2, 3, 4, 5, 6, and 8. The Act
consists of Clauses I to 9 inclusive, and Clause 9 enacts the Constitution ; so that the
Constitution is unquestionably a part of the Act. In the Commonwealth Bill as intro-
duced into the Imperial Parliament, the Constitution was, at the suggestion of the
Crown Law Officers, annexed as a schedule to the Bill ; but in Committee the original
form of the Bill was restored. (See Hist. Note to Clause 2. ) In the construction of the
words " This Act" the question will ever be open to argument as to whether the pre-
amble is part of the Act and to wliat extent it may be used to explain, enlarge, or
contract the meaning of words in the Constitution. (See Note § 2 " Preamble.")

§ 33. "And all Laws."

No difficulty is suggested by the words, " and all laws made by the Parliament of
the Commonwealth under the Constitution." The words " under the Constitution " are
words of limitation and qualification. They are equivalent to the words in the corres-
ponding section of the Constitution of the United States "in pursuance thereof."
Supra. Not all enactments purporting to be laws made by the Parliament are binding ;
but laws made under, in pursuance of, and within the authority conferred by tlie Con-
stitution, and those only, are binding on the courts, judges, and people. A law in
excess of the authority conferred by the Constitution is no law ; it is whoU}' void and
inoperative ; it confers no rights, it imposes no duties ; it affords no protection.
^Norton v. Shelby County, 118 U.S. 425 ; see note § 447 " Power of the Parliament of a
Colony.") The Act itself is binding without limitation or qualification because it i«
passed by the sovereign Parliament, but the laws passed by the Parliament of the
Commonwealth, a subordinate Parliament, must be within the limits of the delegatiou
of powers or they will be null and void. To be valid and binding they must be withui
the domain of jurisdiction mapped out and delimited in express terms, or by necessary
implication, in the Constitution itself. What is not so granted to the Parliament of the
Commonwealth is denied to it. What is not so granted is either reserved to the States,
as expressed in their respective Constitutions, or remains vested but dormant in the
people of the Commonwealth. The possible area of enlargement of Commonwealth
power, by an amendment of the Constitution, will be considered under Chapter VIII.

" Every legislative assembly existing under a federal constitution is merely a. sub-
ordinate law-making body, whose laws are of the nature of by-laws, valid whilst within
the authority conferred upon it by the constitution, but invalid or unconstitutional u

-§33.]

COVERING CLAUSES. 347

they go bejond the limits of such authority. There is an apparent absurdity in com-
paring the legislature of the United States t(T an English railway company or a school
board, but the comparison is just. Congress can, within the limits of its legal powers,
pass laws which bind every man throughout the United States. The Great Eastern
Railway Company can, in like manner, pass laws which bind every man throughout the
Britishdominions. A law passed by Congress which is in excess of its legal powers, as
contravening the Constitution, is invalid ; a law passed by the Great Eastern Railway
Company in excess of the powers given by Act of Parliament, or, in other words, by the
legal constitution of the company, is also invalid ; a law passed by Congress is called an
' Act ' of Congress, and if ultra vires is described as ' unconstitutional ;' a law passed by
the Great Eastern Railway Company is called a ' by-law,' and if ultra vires is called, not
'unconstitutional,' but ' invalid.' DiflFerences, however, of words must not conceal from
us essential similaritj' in things. Acts of Congi-ess, or of the Legislative Assembly of
New York or of Massnehusetts, are at bottom simply ' by-laws,' depending for their
validity upon their being within the powers given to Congress or to the State legislatures
by the'Constitution. The bj'-laws of the Great Eastern Railway Companj', imposing
fines upon passengers who travel over their line without a ticket, are laws, but they are
laws depending for their validity upon their being within the powers conferred upon the
iipanv by Act of Parliament, i.e., by the company's constitution. Congress and the
' at Eastern Railway Company are in truth each of them nothing more than sub-
iinate law-making bodies." (Dicey's Law of the Constitution, p. 137.)
" Every Act of Congress, and every Act of the legislatures of the States, and every
part of the Constitution of any State, which are repugnant to the Constitution of the
Lnited States, are necessarih* void. This is a clear and settled principle of (our) consti-
tutional jurisprudence." (Kent's Commentaries, I., p. 314.)

" The legal duty therefore of every judge, whether he act as a judge of the State of
Xew York or as a judge of the Supreme Court of the United States, is clear. He is
md to treat as void every legislative act, whether proceeding from Congress or
111 the State legislatures, whicli is inconsistent with the Constitution of the United
I tes. His duty is as clear as that of an English judge called upon to determine the
iidity of a by-law made by the Great Eastern Railway Company or anj- other Railway
lupany. The American judge must in giving judgment obey the terms of the Con-
tution, just as his English brother must in giving judgment obey every Act of Parlia-
t-'Ut bearing on the case." (Dicey, Law of the Constitution, p. 146 )

In Canada the Dominion Parliament has power to make laws in relation to all
atters not coming within the classes of subjects exclusively assigned to the legislatures
the Provinces.

" There exists, however, one marked distinction in principle between the Consti-
-ion of the United States and the Constitution of the Canadian Dominion. The
nstitution of the L^nited States in substance reserves to the separate States all powers
t expressly conferred upon the national government. The Canadian (Constitution in
istance confers upon the Dominion government all powers not assigned exclusively to
? Provinces. In this matter the Swiss Constitution follows that of the United States."
'I'-ey, Law of the Const., p. I.IQ.)

This characteristic of the Canadian Constitution tends greatly to strengthen the
wer of the Dominion at the expense of the Provinces, and so helps, in common with
ler features, to make it approximate to a unitarian rather than a federal form.

The Coloxial Laws Validitv Act. — A detailed reference may be here appro-

lately made to a subject which was not specifically discussed during the progress of

■ Commonwealth Bill through the Federal Convention, but which was raised by the

-iw Officers of the Imperial Government whilst the Bill was under consideration in

I'.iigland, namely, the applicability of the Colonial Laws Validity Act, 1865, to the Con-

itution of the Commonwealth. Can the Federal Parliament, legislating in reference to

ijects assigned to it, enact laws repugnant to Imperial legislation applicable to the

lonies, in force at the establishment of the Commonwealth, or passed subsequently ?

It was a rule of common law that a colonial legislature was subordinate to the

jEnglish and afterwards to the British Parliament ; that it could not pass laws in conflict

with the laws of England expressly applicable to the colonies. This rule was confirmed

by Statute. It was declared by sec. 9 of 7 and 8 Wm. III. c. 22 (1696) that all laws,

H'-laws, usages, and customs which should be in practice in any of the American plan-

tions, repugnant to any law made or to be made in the Kingdom, "so far as such laws

348 COMMENTARIES ON THE CONSTITUTION. [Cl. 5.

shall relate to and mention the said plantations," were null and void. (Supra, p. l.>
This section was subsequently re-enacted, in substantially the same words, by 3 and 4
Wm. IV. c. 59, sec. 56(183.3). The commissions and instructions of colonial governors
used to require that ordinances passed by the Governor in Council should not be repug-
nant to the law of England.

The extent of this prohibition was very uncertain, and doubts frequently arose as to
what constituted a repugnancy. See, for instance, the Imperial Act, 1 Wm IV. c. 20
(18,31) passed to remove doubts which had arisen in Lower Canada. A vague limitation
was even supposed to exist, that the laws of a Crown colony must not be repugnant to-
the common law. (See Tarring, Law relating to Colonies, •2nd ed. , 144 ; Stephen, Hist,
of Crim. Law, ii. , 58. )

This vague and sweeping rule of invalidity was idtimately superseded by the
Colonial Laws Validity Act, 28 and 29 Vic. c. 63. Sec. 2 of that Act declares that any
colonial law which is in any respect repugnant to an Act of the Imperial Parliament
extending to the colony (which is defined to mean "applicable to such colony by the
express words or necessary intendment of any Act of Parliament") or repugnant to any
order or regulation made under any such Act, shall be read subject to such Act, order,
or regulation, and shall, to the extent of such repugnancy, but not otherivue, be absolutely
void. Sec. 3 provides that no colonial law shall be void on the ground of repugnancy
to the law of England unless it is repugnant to some such Act of Parliament, order, or
regulation as aforesaid.

When this Act was passed, it was not regarded as a curtailment of legislative power
in the colonies ; it took away no power previously enjoyed ; it was, in fact, looked upon
as one of the charters of colonial legislative independence, next in importance to the
famous Declaratory Act, 18 Geo. III. c. 12, in which the British Parliament, profiting
by the lessons of the American rebellion, renounced its intention to again tax the
colonies. It removed all doubts as to the powers of colonial Legislatures to alter or
repeal the general mass of English law, such as the law of primogeniture, inheritance.
&c. , not made operative, by Statute, throughout the Empire. The Colonial Laws
Validity Act was, therefore, an enabling Act, not a restrictive or disabling Act. This
proposition may be best illustrated and confirmed by a reference to authorities.

The Imperial Copyright Act 5 and C Vic. c. 45 (1842) is by express words declared
to extend "to every part of the British dominions." In the celebrated copyright case
of Low V RoutledgCj L.R. 1 Ch. 42 (1865), it was contended that the Imperial Act was
not in force in Canada, because Canada had a representative Legislature of its own, and
was not directly governed by legislation from England ; that consequent!}' it was not
included in the general words of the Act. This contention was not sustained. In
delivering the judgment of the Court of Appeal, Lord Justice Turner said the Imperial
Copyright Act was in force in Canada ; and consequently rights acquired under aa
Imperial Act in force throughout the Empire could not be affected by the law of a colony
inconsistent therewith. This case was decided in 1865, before the passing of the
Colonial Laws Validity Act.

Shortly after the grant of a new constitution and responsible government to
Victoria, the Parliament of that colony passed an Act, No. 8, to amend the law of
evidence. It purported to repeal the provisions of tlie Imperial Acts, 54 Geo. III. c. 15,
5 and 6 Will. IV. c. 62, and 14 and 15 Vic. c. 99, s. 11, so far as they applied to Victoria.
The Secretary of State for the Colonies afterwards drew attention to the fact that it
was beyond the competence of a colonial Legislature to repeal an Imperial Act applicable
to the colonies. An Act was then passed by the British Parliament repealing the Acts
of Geo. III. and Will. IV. so far as Victoria was concerned, and also enabling the Legis-
latures of other colonies to repeal those Acts if they thought proper, (22 and 23 V ic.
c. 12.) The Victorian Parliament repealed its own Act, No. 8, and passed a new one,
in which it was recognized and declared that the section of the Act 14 and 15 Vic. c.

133] COVERING CLAUSES. 349

99, s. 11, which it had abortively attempted to repeal, was in force in Victoria.
(Beam's " Government of England," 2nd ed., p. 597.)

These two precedents show that even before the passing of the Colonial Laws

: Validity Act it was recognized in law as well as in practice that a colonial Legislature

<;ould not repeal an Imperial Act applicable to the colonies, whether that Act was in

; force before or came into force after the constitution of such colonial Legislature. That

I Act limits rather than enlarges the doctrine of repugnancy ; it enlarges rather than

limits the power of colonial Legislatures (1) by repealing the common law rule that

! €very colonial law repugnant to English law is void, and confining nullity for repugnancy

to cases where statutes are expressly intended to apply to the colonies, and (2) by

restricting the nullity to the inconsistent provisions only, and not allowing a particular

variance to invalidate the whole colonial Act.

Attention may be now drawn to cases which have occurred, and contentions raised,

since the passing of the Validity Act. In the case of Smiles v. Belford (1S77), 1 Ont.

Appeals, 436, the author of the well-known work, "Thrift," published in England,

brought a suit in Canada to restrain the reprint of his work in Canada. The work had

been copyrighted in England under 5 and 6 Vic. c. 45 (1842), which we have seen is in

force throughout the British dominions, but it had_ not been copyrighted in Canada

junder the Canadian Copyright Act 35 Vic. c. 88. It was argued for the defendant that

fiT- Canadian Act repealed the Imperial Act, notwithstanding the Colonial Laws

lity Act. Proudfoot, V.C., overruled this contention. In the Court of Appeal

ario), the judges were iinanimous in the opinion that the Federal Parliament had

luthoritj' to pass any law opposed to statutes which the Imperial Parliament had

■f applicable to the whole Empire.

In ex parte Renaud, 14 X. Bruus. 273, 2 Cart. 447 (1873), Chief Justice Ritchie re-
•-d to the Colonial Laws Validity Act as a clear statutory recognition of the supreme
-lative control of the British Parliament over colonial Legislatures. So the same

led judge decided in the City of Fredricton v. The Queen, 3 S.C.R. (Can.) 529
^1) that the power of legislation conferred on the Dominion Parliament and the pro-

al Legislatures, respectively, by the British North America Act, 1867, was subject
lie sovereignty of the British Parliament.

In the case of the Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. (Can.) 312
^'>), the validity of the Dominion Winding-up Act, 45 Vic. c. 23, which was
uently in conflict with the Imperial Joint Stock Acts of 1862 and 1867, was
-idered. Justices Strong and Henr}' expressed the opinion that the Dominion Act
.1(1 have been ultra vires if it had purported to deal with a company incorporated
'T English laws, thus supporting the view that the Dominion Parliament had no
aority to enact laws repugnant to an Imperial Act extending to Canada, whether
1 Act was passed before or after the creation of the Dominion. (Lefroj', Leg. Power,
. -210.)

A dictum somewhat in conflict with these decisions, to the efiect that the Parlia-
nt of Canada ha*! power to pass laws repealing Imperial Acts in force prior to

•ration and extending to the colonies, was expressed by Draper, C. J., in Regina r.

lor, .36 Upper Canada Q. B. 183 (1875). But the opinion of that learned judge was
i-ed on the special wording of sec. 91 of the B.N.A. Act, which gives the Dominion
uliament "exclusive legislative authority" to make laws in certain cases. The word
exclusive " he considered as meaning exclusive of the British Parliament, and hence it
as a renunciation of its right to legislate in matters exclusively assigned to the
auadian Parliament. This dictum, it will be noticed, turns Ion the word "exclusive,"
hich does not occur in sec. 51 of the Commonwealth Bill, defining the principal
'wers of the Federal Parliament. The opinion of Draper, C.J., was seriously doubted
the Ontario Court of Appeal in the later case of Smiles v. Belford, in which Moss, J.,
id : "I believe his lordship did not deliberatelj' entertain the opinion which these

350 COMMENTARIES ON THE CONSTITUTION. [Ci.6.

expressions have been taken to intend. He simply threw out the suggestion in tliat
direction, but further consideration led him to adopt the view that the Act did not
curtail the paramount authority of the Imperial Parliament." In a British Columbia
case, Tai 8ing v. Macguire, 1 Brit. Col. (Irving), p. 107 (1878^, Gray, J., said : " It was
difficult to see the foundation for the conclusion arrived at by Draper, C. J." In Regina
V. College of Physicians, 44 Upper Can. Q. B 564, 1 Cart., p. 761 (1879), the Court of
Queen's Bench of Ontario held that the British Medical Act (1868) applied to Canada,
and that the provincial Legislatures could not pass a law repugnant to the Imperial
Act, which declared that any person registered thereunder as a duly qualified medical
practitioner should be entitled to register and practice in any part of the British
dominions.

The Canadian case, Riel v. The Queen, 10 App. Ca. 675 (1885), illustrates the
conditions under which a colonial Legislature may alter an Imperial Act operative
within the colony. The Amending British North America Act, 34 and 35 Vic. c. 28-
(1871), authorized the Parliament of Canada to make laws for the administration, peace,
order and good government of any teri-itory not included in a province. In the exercise
of this power it passed the Act 43 Vic. No. 25, providing, inter alia, a sunnnary
procedure for the trial of criminal oifences, including treason, committed in the North-
west Territory. This summary trial for treason was alleged to be inconsistent with the
Act 7 and 8 Wm. III. c. 3 (1696) and the Hudson's Bay Act, 31 and 32 Vic c. 105
(1868), under which a person charged in the territory with treason was entitled to trial
bj' a judge and jury of twelve men with a right of challenging thirty-five. Riel waa
convicted under the new law. He applied for leave to appeal to the Privy Council, on
the ground that the Parliament of Canada had no authority to abolish, in the North-
west Territory, trial by jury in treason cases, and that the local Act was not necessary
for the peace, order, and good government of the territory. The Privy Council held
that the Canadian Act was properlj^ passed in the exercise of the power conferred by
the Imperial Act of 1871, and that the words of that statute authorized the utmost
discretion of enactment for the object aimed at, and the widest departure from the
criminal procedure as known in England.

On the 27th March, 1889, during a debate in the Canadian Parliament on the con-
stitutionality of the Quebec Jesuits Bill, Sir John Thompson, Minister of Justice, raised
for the first time, in the political arena, the doctrine that the Canadian Legislatures,
federal and provincial, had legal authority to repeal or amend Imperial Acts passed prior
to the B.N. A. Act, 1867, and relating to subjects within the exclusive jurisdiction of
those Legislatures. The only relevant legal authority which he cited in support of the
doctrine was that of Riel v. The Queen, sitpra. A reference to the report of that case
shows that the validity of the Canadian Act was affirmed because it was authorized by
the special and expressed terms of the Imperial Act of 1871.

Sir John Thompson afterwards renewed the same contention in connection with
Canadian Copj^right Bills ; it was not acquiesced in, but strongly objected to by the
Imperial law officers, and by at least two Secretaries of State. (Lefroy, Leg. Power,
p. 223.)

The result of this review of authority may now be summed up. The great mass
of legal decision in Canada and England, and official opinion in England, is to the effect
that a colonial representative legislature cannot, even within the jurisdiction assigned ta
it, repeal or alter an Imperial Act operative throughout the Empire, whether the Act i»
in force before or passed after the creation of the colonial Legislature ; to enable it to
amend the terms of Imperial statutes generally in force it must have special and express
authority.

These were the principles of Constitutional Government which were no doubt kept
in view by the framers of the Commonwealth Bill. It was not thought necessary to
declare that the Constitution should be read in conjunction with tlit Colonial Law*
Validity Act. It was assumed, as a matter of course, that that would be done.

§33.]

COVERING CLAUSES. 351

When clause 5 was under consideration in the Sydney Convention an amendment,
formulated by the Legislative Council of South Australia, was submitted, adding the
words " in addition to the laws of Great Britain," and making the last part of the clause
to read — "in addition to the laws of Great Britain the laws of the Commonwealth shall
be in force on all British ships." The amendment, it was considered, was vague, con-
fusing, and unnecessary. Mr. R. E. O'Connor suggested that the clause might be made
clearer by inserting the words " the laws of the Commonwealth in so far as the same are
not repugnant to any Imperial Act relating to shipping or navigation." Mr. Isaacs sug-
gested that even that addition was unnecessary, as the laws of the Commonwealth would
be subject to the Imperial laws relating to repugnancy, the Imperial laws being para-
mount. Mr. O'Connor was of opinion that the Colonial Laws Validity Act would apply
only to the legislation of the various States, and that " it would not apply to this Act
at all;" but eventually the South Australian amendment was rejected, and Mr.
O'Connor did not press his suggestion. (Con v. Deb., Sydney, p. 252.)

When the Bill was sent to England the question was raised, and a doubt expressed
by the Law Officers of the Crown as to the application of the Colonial Laws Validity- Act
to Acts passed by the Federal Parliament. In support of the doubt attention was drawn
to Mr. O'Connor's dictum, also to the definition of " colony" and " colonial legislature,'*
L as given in sec. 1 of the Colonial Laws Validity Act, and to the definition of " colony "
as given in Clause 6 of the Commonwealth Bill. The Imperial authorities had always
held that the Parliament of the Dominion of Canada was " a colonial legislature,'' as
ilf-fined by the said Act ; yet it was now submitted that the definition of "colony " in
Commonwealth Bill might raise a doubt whether "the Commonwealth" was a
■lony " within the meaning of the Colonial Laws Validity Act, and consequently
ther laws passed by the Federal Parliament would be laws passed bj' "a Colonial
-islature " as defined by that Act. It was, therefore, proposed to remove doubts by
ing a paragraph to Clause 6 declaring that "the laws of the Commonwealth shall
lolonial laws within the meaning of the Colonial Laws Validity Act, 1865." It was
nted out in the first Imperial Memorandum that Mr. O'Connors dictum showed that
•e was room for misapprehension, which it was desirable to remove. It was
'Ortant in the interests of the Commonwealth, as well as of the rest of the Empire,
" .at there should be no doubt as to the validity of Commonwealth laws, or as to the
premacy of Imperial legislation. The Memorandum proceeded to argue that there
~ room for such misapprehension not only from the language of Clause 6 of the
taring clauses, but also from sec. 51, sub-sec. xxxviii., of the Constitution, which con-
ed on the Commonwealth Parliament "the exercise within the Commonwealth, at
.-- request or with the concurrence of the Parliaments of all the States directly con-
crned, of any power which can at the establishment of this Constitution be exercised
.>• by the Parliament of the L'nited Kingdom or by the Federal Council of Austra-
a.' Sub-sec. xxix. of the same section of the Constitution, moreover, empowered
Commonwealth Parliament to legislate in regard to " external afiairs," aiul,. conse-
ntly, imder these pro\nsion3 it might be claimed that the Parliament of the Common-
ilth had power to pass legislation inconsistent with Imperial legislation dealing with
ii subjects as those dealt with by the Foreign Enlistment Act The responsibility to
ign Powers for such legislation would rest, not on Australia, but on the Government
-he United Kingdom, as representing the whole Empire ; and in the absence of any
nnition or limitation of the privilege claimed by these pro\'isions for the Common-
Uth Parliament, Her Majesty's Government would fail in their duty if they left any
m for doubt as to the paramount authority of Imperial legislation. (See House
I Com. Pap. May, 1900, p. 23.)

The Australian Delegates miiintained that the doubt raised by the Imperial Law
|>fficer8 was unfounded, and that there was no necessity for any amendment. They
kere of opinion that the meaning of the Bill was clear, without any such legislative
jxplanation. The doubt expressed by the law advisers of the Crown arose, as they

352 COMMENTARIES ON THE CONSTITUTION. [ci. 5.

■explained, from the presence in Clause 6 of the words "Colony shall mean anj-
Colony or Province." It was submitted that this definition was framed simply for the
purpose of clearly including South Australia in the Bill, and could in no wise exclude
the definition of " Colony " in the Colonial Laws Validity Act from applying to the
Commonwealth in relation to its laws.

" The definition in the Commonwealth Bill arises from the fact that South Australia
has from time to time been variouslj- designated in leyislation as a Colony and as a
Province. For instance, in the Imperial Statutes 4 and 5 Wm. IV. c. 95 and 1 and "2
Vic. c. t)0, the designation is ' Province ;' in 5 and 6 Vic. c. 61 ' Colony ' and ' Province'
•are both used for the same purpose. In 4 and 5 Vic. c. 13, in 13 and 14 Vic. c. 59, and
in all Imperial Acts relating to South Australia since the passage bj^ the local Legislature
of the Constitution Act (18 and 19 Vic. No. 2) the term 'Colony' is used. But in the
Act last mentioned, and in all other local legislation since its passage, South Australia
has imiformly been referred to as a ' Province.' Apart from legislation, the Letters-
patent, Commissions and Instructions, issued in connection with the offices of Governor,
Lieutenant-Governor, and Administrator of the Government for South Australia, have
all employed the word ' Colony ' alone to designate that possession, while the Regula-
tions and other official documents under or in consequence of local Acts have as regularly
referred to South Australia as a 'Province.' It was merely for the purpose of avoiding
the constant repetition of the distinction between the words ' Colony,' as applied to the
other states, and ' Province,' as applied to South Australia, that the definition in
•question was placed in the Bill. Inasmuch as Imperial legislation has so generally
referred to South Australia as a Colony, it may be that excessive caution has been used
by the draughtsmen in this instance. If after this explanation any doubt i-eniains, the
Delegates are of opinion that the real point of objection is in the definition itself as
introducing that doubt, and if the definition is unnecessary it would not seem to V>o
convenient to counteract any doubt by amendment elsewhere in the Bill. The Common-
wealth appears to the Delegates to be clearlj^ a ' Colony,' and the Federal Parliament to
be a ' Legislature ' within the meaning of the Colonial Laws Validity Act, and they
cannot think that the larger meaning given to the word ' Colony ' in Clause VI. to save
words, can be held to take away the protection of the Act of 1865 from any law passed
by the Federal Parliament. But the Interpretation Act of 1889 (52 and 5i Vic. c. 63)
might itself be cited in support of the same contention. That Act prescribes that
' imless the contrary intention appears, the expression " Colony " in any Act pa.sse<l
since the 1st January, 1890, is to mean any part of Her Majesty's Dominions, exclusive
of the British Islands and of British India.' The Interpretation Act goes on to require
that where parts of such Dominions are under both a central and a local legislature, all
parts under the Central Legislature shall, for the purposes of the definition, be deemed
to be one Colony. It might be ai'gued that this definition secures the application of the
Validity Act to Colonial Statutes passed since the end of 1889, and if this be so it would
be strange if the occurrence in Clause 6 of the few words quoted were held to deprive
the laws of the Parliament of the Commonwealth of Australia of the same protection.
It may further be observed that the Constitution of Canada contains no words similar
to those proposed to be here inserted, even though that Constitution was enacted prior
to 1889 ; yet it will not be denied that the Colonial Laws Validity Act applies to
Dominion Statutes. What then is there which excludes its application to the statutes
of the Commonwealth?" (See House Coms Pap. May, 1900, pp. 14, 15.)

On the question whether, if an amendment were made, it should be placed in the
Covering Clauses or in the Schedule, the Delegates agreed in the opinion that a declara-
tory enactment of this kind would be looked for rather in the Covering Clauses tiian in
the Schedule. But a separate enactment appeared to be a better vehicle for such a
■declaration than the measure itself.

The amendment declaring that " the laws of the Commonwealth shall be Colonial
laws within the meaningof the Colonial Laws Validity Act, 186'5," appeared in Clause 6
of the Bill introduced into the House of Commons. As a result of sub-sequent negotia-
tions, however, the Imperial Government decided to omit these words, and also to onut
the definition of " colony," and in Conmiittee this was done. It ma}' be assumed,
therefore, that the Crown Law Officers were satisfied that the Colonial Laws Validity
Act is applicable to the Constitution as it stands.

34.]

COVERING CLAUSES. 353

§ 34. '' Shall be Binding on the Courts, Judges
and People."

The importance of these words, as indicating one of the fundamental principles of

'the Constitution, should be specially not^d. They make Clause 5 of the Commonwealth

Constitution Act substantially similar in scope and intention to article VI. sec. 2

[if the Constitution of the United States, supr-a. Under this clause, the Act, the

Constitution, and laws of the Commonwealth made in pursuance of its powers, will be

i;he supreme law of the land, binding on the Courts, Judges, and people of every State,

iiotwithstanding anything to the contrary in the laws of any State. The latter words

Operate as a rescission of all State laws incompatible with the Act, with the Consti-

jUtion, and with such laws as may be passed by the Parliament of the Common-

tvealth in the exercise of its Constitutional rights. Therefore, by this clause, coupled

jvith sections 106 to 109, all the laws of a State, constitutional as well as ordinary, will

>e in effect repealed so far as they are repugnant to the supreme law. All the laws of

^ rate, so far as not inconsistent with the supreme law, will remain in force until

d by the proper authority.

Ihe preeminent significance of this direct action of the federal laws on the Courts,

_ s, and people, is that it forms a distinctly national feature of the Constitution and

'■ntiates it from the weakness and imperfection of a confederate system of govem-

The constitutional value of these words will be better appreciated by comparing

constitution with the Articles of Confederation of the American States (1781), from

1 they are absent.

Those articles established a league of States organized in a Congress in which each

had an equal voice. The Congress was endowed with certain legislative powers,

■ lacked any means of enforcing obedience to its mandates. Xot onlj- was there no

il executive or judiciary worthy of the name, but the laws of the Congress were

ted to the States as political entities and not to private individuals. Congress

j)uld not pass a single law binding on the Courts, Judges, or people of the States. It

"Id only recommend the States to pass local Acts giving eflfect to its laws or requisi-

(Fiske, Critical Period of American History, p. 99.) One of the greatest

Lutnphs of the American Constitution (1787) was that it gave expression to the original

|id noble conception of a dual sjstem of government operating at one and the same

upon the same individuals, harmonious with each other, but each supreme in its

. sphere (»(/. 239). This dual system gave rise to two groups or classes of laws —

.ate laws and Federal laws — both equally binding on individuals and enforceable by

'•propriate procedure. Thereby the federal principle of the Union of States, which

'he basis of the Articles of Confederation, was preserved and conjoined with the

■nal principle that the laws of the Union should be binding on the people of the

nion, interpreted by the judges of the Union, and enforced by the Executive of the

aion.

" In all communities there must be one supreme power and one only. A con-
leracy is a mere compact, resting on the good faith of the parties ; a national, supreme
niment must have a complete and compulsive operation." (Gouverneur Morris, in
Federal Convention, 30th Alav, 1787. Bancroft's History of the United States,
-',p. 1.5.)

■ ' In the nature of things punishment cannot be executed on the States collectively ;
fore such a government is necessary as can operate directly on individuals."
rge Mason, id., p. 15.)

" he difference between a federal and a national government, as it relates to the

ation of the government, is supposed to consist in this, that in the former the

> 'Ts operate on the political bodies composing the confederacy, in their political

',)acities ; in the latter, on the individual citizens composing the nation, in their

i|lividual capacities." (Madison, in The Federalist, xxxix., p. 2.37, cited Foster on

• Constitution, vol. I., p. 106.)

As of the laws of Congress and the Constitution of the United States, so of the
a of the Federal Parliament and the Constitution of the Commonwealth, it may be

354 COMMENTARIES ON THE CONSTITUTION. [Cl. 5.

said that their authority extends over the whole territory of the Union, acting upon the
States and the people of the States. Whilst the Federal Government is limited in the
number of its powers, within the scope of those powers it is supreme. No State
Government can exclude it from the exercise of any authority conferred upon it by the
Constitution, obstruct its authorized officers against its will, or withhold from it for a
moment the cognizance of any subject which the Constitution has committed to it.
(Tennessee v. Davis, 100 U.S. 257.)

§ 35. " And of Every Part of the Commonwealth."

Territorial Limits. — The Constitution and laws of the Commonwealth are in
force within the territorial limits of the Commonwealth. By the law of nations the
territorial limits of a country are allowed to extend into every part of the open sea
within one marine l^gue from the coast, measured from low water mark. This coastal
margin is called " territorial waters," or the " three-mile limit." (See Note, Territorial
Waters, infra.) By a later part of this clause the Constitution and the laws of the
Commonwealth are conceded an extra-territorial force on British ships. (See Note,
§ 38 "British Ships,")

But there may be "parts of the Commonwealth" which are not States. The
territorial limits of the Commonwealth will not be necessarily co-terminous with the
boundaries of the States and their territorial waters added ; they will also embrace any
other regions, with their adjacent territorial waters, which for the time Ijeing may not
be included within the boundaries of a State, but which may be acquired by the Com-
monwealth in any of the ways authorized by the Constitution. Thus the seat of govern-
ment, when determined by the Parliament and made federal territory, will no longer be
part of the State of New South Wales, but will be a part of the Commonwealth.
Again, the Queen might place British New Guinea under the control of the Common-
wealth ; she might detach a part of the vast area of Western Australia from that State
and hand it over to the Commonwealth ; she might do the same with the Northern
Territory of South Australia ; Tasmania might agree to surrender King's Island to the
Commonwealth. Upon acceptance by the Commonwealth in each of these cases, the
territory so surrendered to or placed under the authority of the Commonwealth would
even before its erection into a State, or States, become a part of the Commonwealth, and
the Constitution and laws of the Commonwealth would be as binding on the peopl»
there as on those of a State.

Extra-Territobial Operation of Laws. — A Colony, Dominion, or Federation,
under the British Crown, has no jurisdiction to make laws operative beyond its terri
toi'ial limits, unless such power is specially granted by Imperial Statute. " In tliis
respect independent States are in the same position, at least with regard to the subjects
of other independent States and their property, as those colonies of Great Britain which
possess plenary powers of legislation and self-government. Both are restricted as to
acts of legislation by territorial limits, those limits being fixed in the one case by an
Imperial Statute, and in the other case by the established principles of international
law. The first of the three celebrated axioms of Huberus lays down the rule for
independent States in distinct terms : ' Leges cujusqxie imperii vim haheM intra terminon
ejusdem reipublicm omnesque ei nubjectos obligant, nee ultra.' " (Per Higinbotham, J., m
Regina v. Call, ex p. Murphy [1881], 7 V.L.R. [L.], p. 121.)

There are only two provisions in the Constitution Act explicitly relating to the
extra-territorial operation of laws. The first is in Clause 5, which makes the law»
of the Commonwealth in force on British ships vojaging solely between ports of the
Commonwealth (see Note, § 38, "British ships"); the second is in sec. 51 x., which
empowei's the Federal Parliament to legislate as to " fisheries in Australian watere
beyond territorial limits." The legislative powers given by sec. 51 — xxix., as to "ex-
ternal affairs," and by sec. 51 — xxxviii., as to powers previously exercisable by the

135]

COVERING CLAUSES. 355

Imperial Parliament or by the Federal Council, do not necessarily imply extra-territorial
operation, and it is therefore submitted that they do not sanction any such operation.
" Xo State can by its laws directly affect, bind, or regulate property beyond its
own territory, or control persons who do not reside within it, whether they be native-
born subjects or not ; a different system, which would recognize in each State the power
of regulating persons or things beyond its territory, would exclude the equalitj' of rights
among different States, and the exclusive sovereignty which belongs to each of them."
(Felix, Droit International Prive, s. 10.)

" The Legislature of a colony may authoidze the exclusion from its territory of a
person charged with an offence in another colony, or that he be punished unless he leaves
the territory, or his detention ; but it cannot authorize the sending him in custody out
of its territory into another colon}'." (Ray v. McMackin, 1 V.L.R. [L.], p. 272.)

"In Phillips r. Eyre, L.R. 6 Q.B., p. 1., it was distinctly enunciated that the
superior Courts in England will regard Acts of colonial Legislatures in the same way as
they regard Acts of foreign countries legislating vrith respect to their inhabitants within
the limits of their authority. Any attempt to exercise jurisdiction beyond the boundaries
of their own territory, domestic or distant, by either one or the other, is treated as
being beyond the powers of their Legislatures." (Per Barrv, J., in Ray v. McMackin,
1 V.L.R'. [L.], p. •2S0.)

"On Dec. 17, 1869, the Secretary of State for the Colonies notified the Governor-
General of Canada, in regard to certain Acts passed by the Dominion Parliament in the
previous session of Parliament, that Her Majesty would not be advised to exercise her
power of disallowance with respect thereto ; but that he observed that the third section
of ' an Act respecting perjury ' assumed to affix a criminal character to acts committed
beyond the limits of the Dominion. ' As such a provision is beyond the legislative power
of the Canadian Parliament,' the Colonial Secretary requested the Governor-General to
\ bring this point to the notice of his Ministers, with a view to the amendment of the Act
I in this particular. Accordingh-, in the ensuing session of the Dominion Parliament, an
; Act was passed to correct this error." (Todd, Pari. Gov. in the Col., p. 145.)

The Criminal Law Amendment Act, 1883, sec. 54, of New South Wales, enacts that

■ whosoever being married marries another pei-son during the life of the former husband

1 or wife, wheresoever such second mamage takes place, shall be liable to penal servitude

I for seven years : " It was held by the Privy Council that those words must be intended

j to apply to persons actually within the jurisdiction of the Legislature, and consequently

that the Courts of the colony had no jurisdiction to try the appellant for the offence of

bigamy alleged to have been committed in the United States of America. (Macleod v.

Att.-G'en. for New South Wales [1891], A.C. 455; Digest of English Case Law, vol. 3,

p. 486. )

In the case of Re Victoria Steam Na^^gation Board, ex jmHe Allan, decided by
the Full Court of Victoria, consisting of Stawell, C..T., and Stephen and Higinbotham,
JJ., in 1881, the Court (Higinlxttham. J., dissenting) were of the opinion that the
j Passengers, Harbours, and Navigation Statute, 1865. did not give the Steam Navigation
T5oard any jurisdiction to enquire into charges of incompetency of a master, occurring
' 'ape Jaffa outside Victorian waters, and that the Imperial .Merchant Shipping Act,
•'4, sec. 242, sub-sec. 5, and Merchant Shipping Amendment Act, 1862, sec. 2^^, did
.not confer on it any extra-territorial jurisdiction. The summons to prohibit the enforce-
jment of the suspension of a master's certificate was allowed, with costs. {Ex parte
Allen,- V.LR 248, 3 A,L T., p. 1.) But now see Merchant Shipping Act, 1894,
478.

The British Parliament, being a sovereign legislature, may pass laws binding on its
nibjects all over the world ; but, according to the principles of international law, it
)ught not to legislate for foreigners out of its dominions and beyond the jurisdiction of
-he Crown. (Lopez v. Burslem, 4 Moo. P.C, 300: the Zollverein, 1 Swab. Adm., 96.)
rhe British Parliament has not, according to the principles of public law, any authority
X) legislate for fereign vessels on the high seas or for foreigners beyond the frontiers of
he Empire. (Reg. v. Keyn, 2 Ex. D 220.) Should the British Parliament in violation
»f those principles attempt to render foreigners subject to its laws with reference to
•ffences committed beyond its territorial limits, it would be incumbent on the Courts of
he Empire to enforce those enactments, leaving it to the Imperial Government to settle
he question of international law with the governments of the nations concerned. But
he laws of the Commonwealth being those of a subordinate and non-sovereign legisla-
nre would be examinable by the Courts, and if it appeared that they purported to legis-
»te for matters outside the limits of the Commonwealth tliey would be pronounced ultra
ires and null and void.

356 COMMENTARIES ON THE CONSTITUTION. [ci. 5.

Territorial Waters. — Some further explanation of tlie rule of the " three mile
limit " by Mr, Hall may be here added : —

" Of the marginal seas, and enclosed waters, which were regarded at the beginning
of the present century as being susceptible of appropriation, the case of the first is the
simplest. In claiming its marginal seas as property a state is able to satisfy the
condition of valid appropriation, because a narrow belt of water along a coast can be
efJ'ectively commanded from the coast itself either by guns or by means of a coast-guai'd.
In fact also such a belt is always appropriated, because states reserve to their own
subjects the enjoj'ment of its fisheries, or, in other words, take from it the natural
products which it is capable of yielding. It may be added that, unless the right to
exercise control were admitted, no sufficient security would exist for the lives and
property of tlie subjects of the state upon land ; the}' would be exposed without recog-
nised means of redress to the intended or accidental effects of violence directed against
themselves or other persons of whose nationality, in the absence of a right to pursue and
capture, it would often be impossible to get proof, and whose state consequently could
not be made responsible for tlieir deeds. Accordingly, on the assumption that any part
of the sea is susceptible of appropriation, no serious question can arise as to the existence
of property in marginal waters. Their precise extent however is not so certain.
Generally their limit is fixed at a marine league from the shore ; but this distance was
defined by the supposed range of a gun of position, and the effect of the recent increase
in the power of artillery has not yet been taken into consideration, either as supplying
a new measure of the space o\'er which control may be efficiently exercised, or as
enlarging that within which acts of violence way be dangerous to persons and property
on shore. It may be doubted, in view of the very diverse opinions which liave been
held until lately as to the extent to which marginal seas may be appropriated, of the
lateness of the time at which much more extensive claims have been full}' abandoned,
and of the absence of cases in which the breadth of territorial water has come into inter-
national question, whether the three mile limit has ever been unequivocally settled ; but,
in any case, as it has been determined, if determined at all, upon an assumption w hich has
ceased to hold good, it would be pedantry to adhere to the rule in its present form ; and
perhaps it may be said without improprietj' that a state has the right to extend its
territorial waters from time to time at its will with the increased range of guns ;
though it would undoubted]}' be more satisfactory that an arrangement upon the subject
should be come to by common agreement." (Hall's International Law, § 41.)

" Bluntschli thinks that, considering the range of modei'n artillery, the three-
mile zone is too narrow. Phillimore and Fiore express the same opinion, but think that
an alteration can only be made by ti'eaty. It appears to have been suggested by the
American government to that of England in 1864 that territorial waters should be con-
sidered to extend to a distance of five miles from shore." {Id.)

§ 36. " The Laws of Any State."

The laws of the States will comprise the following classes : —

(i.) Imperial Acts relating to the Constitution and government of the colonies

when they become States :
(ii.) Imperial Acts relating to matters of ordinary legislation expressly applic-
able to the colonies when they become States :
(iii.) The Common law so far as applicable and not modified by colonial or

State legislation :
(iv.) LaM's of the realm of England made applicable to some colonies by the

general terms of the Act of 9 George IV. c. 83, and not since repealed or

amended by colonial legislation :
(v.) Acts relating to constitutional matters as well as to matters of ordinary

legislation passed by the colonial or State legislatures in the exercise of

Statutory authority conferred by Imperial law.

All these laws will remain in full force and effect until they become inconsistent
with — (1) The Commonwealth of Australia Constitution Act, or (2) some Act amend-
ing the Constitution, or (3) laws to be made thereunder by the Parliament of the
Commonwealth. By the Constitution of the colonies their legislatures have power to
make laws in and for those colonies respectively in all cases whatsoever. When tho«e

g§ 36-38.] COVERING CLAUSES. 357

colonies become States their large powers will by degrees be considerably cut down,
although they will be compensated for the loss of direct authority by their representa-
tion in the Federal Parliament. The jurisdiction of that Parliament will over-lap and
in time will considerably contract the realm of State jurisdiction. As the federal legis-
lation within the area of enumerated powers acquires acti\-ity and increases in volume,
the State laws within that area w ill be gradually displaced by federal laws, but until
they are so displaced through repugnancy they will retain their original vitality and be
binding on the people of their respective States.

§ 37. " The Laws of the Commonwealth.*

This is a more suitable and comprehensive expression than the one which appears at
the beginning of this clause, \nz., " this Act and all laws made by the Parliament of the
Commonwealth." The laws of the Commonwealth will consist of the following classes : —
(I.) The Commonwealth of Australia Constitution Act.

(II.) Alterations of the Constitution pursuant to the provisions of Chapter YIII.
(III.) Laws made by the Parliament of the Commonwealth under the Consti
tution.
It will be noticed that the second group of laws as above classified will not be laws
made bj' the Parliament ; they may be laws proposed either by one or both of the
Federal Chambers, subject to certain conditions, and afterwards approved by the quali-
fied electors of the Commonwealth and assented to by the Governor-General or by the
Queen.

§ 38. "British Ships."

The rights, duties, and liabilities of British ships M-hilst at home or abroad have
been settled by a long series of legal decisions interpreting and enforcing the common
law, as well as by the codified pro\nsions of the Merchant Shipping Act, 1894, some parts
of which are in force throughout the British empire. One of the fundamental principles
ti British shipping law is that British merchant ships sailing upon the high seas are
3onsidere<l parts of the territory of the British empire and come within the rule of extra-
Lerritoriality. It is a principle of the Common Law and of the law of nations that a
5hip on the high seas is a part of the territory of the State to which she belongs, and
herefore an English ship is deemed to be a part of England. (Per Blackburn, J.,
Marshall v. Murgatroyd, L.R. 6 Q.B. 31.)

Kliiber says " that upon the ocean every ship is considered extra-territorial in
ad to all foreign nations. A merchant vessel ought to be considered as a floating
ny of its State." (Droit des Gens, part 2, Tit. 1, c. 2, § 299.)

Hall and other writers on international law describe Kliiber's theory as a fiction,

they all agree that a ship at sea should be subject to the jurisdiction of the State

•;r whose flag she sails ; that such a doctrine is most reasonable and advantageous ;

: that if ships were amenable to no tribunal the sea would become a place where every

lie might be committed with impunity. (Twiss' Law of Nations in Time of War,

172.) A merchant vessel in non-territorial waters is therefore subject to the

•reignty of that country only to which she belongs, and all acts done on board her

.1st on such waters are cognizable only by the courts of her own State unless they be

- of piracy. This rule extends to cases in which, after a crime has been committed by

pon a native of a country other than that to which the ship belongs, she enters a

of that State with the criminal on board. (Hall's International Law, p. 186.) In

ign territorial waters, however, a merchant vessel is under the territorial jurisdiction,

^ its officers and crew are subject to the local laws prevailing in such waters.

Crimixal Jurisdiction on the High Seas. — AU persons on board a ship are within

jie jurisdiction of the nation whose flag the ship flies, in the same manner as if they

jere within the territory of that nation. The criminal jurisdiction of the Admiralty of

358 COMMENTARIES ON THE CONSTIT QTION". [Cl. 5.

England extends over British ships, not only on the high seas, but also on rivers below
the bridges where the tide ebbs and flows and where great ships go, though at a spot
where the municipal authorities of a foreign country might exercise concurrent
jurisdiction if invoked. (Per Blackburn, J., in Reg. v. Anderson [1886] L.R. 1 C.C.
161-4.) There will be jurisdiction at common law if a British ship be on the high seas,
infra primos pontes, or in a tidal river where great ships come and go. (Reg. i\
Armstrong [1875] 1.3 Cox, C.C. 185.) The ofiFence need not be consummated or wholly
completed on board such ship to give jurisdiction (id.) A larceny of bonds was
committed by some person unknown on board a British ocean-going merchant ship lying
in an open river, moored to the quay at Rotterdam, in Holland, at a distance of 18 miles
from the sea, but within the ebb and flow of the tide. A person who afterwards was
found in England in possession of the stolen property was there convicted of receiving
the bonds. (Reg. v. Carr [1882] 10 Q.B.D. 76.) The surviving crew of an English
yacht, cast away in a storm on the high seas, who were obliged to take to an open boat,
and who were, they alleged, constrained by hunger to kill and eat a boy, one of their
number, were tried in England and found guilty of murder. (Reg. v. Dudley [1884] 14
Q.B.D. 273.) A hulk retaining the general appointments of a ship registered as a
British ship, though only used as a floating warehouse, is a British ship. (Reg. v.
Armstrong, 13 Cox, C.C. 185.)

Jurisdiction of Colonial Courts.— The jurisdiction to try persons for offences
committed on the high seas, within the jurisdiction of the Admiralty, was in 1849
conferred on colonial courts by the Act 12 and 13 Vic. c. 96, sec, 1. This provides that
colonial courts should have the same jurisdiction for trying such offences, and should
be empowered to take all such proceedings for bringing persons charged therewith to
trial, and for and auxiliary to and consequent upon the trial, as by the law of the colony
might have been taken if the offence had been committed upon any waters within the
limits of the colony.

Later Imperial Legislation.— By the Merchant Shipping Act, 1867 (30 and 31
Vic. c. 124, s. 11.) it was enacted that if any British subject commits anj' offence on
board any British ship, or on board any foreign ship to which he does not belong, any
court of justice in her Majesty's dominions which would have cognizance of such offence,
if committed on board a British sliip, within the limits of the ordinary jurisdiction of
such court, shall have jurisdiction to hear and determine the case, as if the offence had
been so committed.

The Merchant Shipping Act, 1894, sec. 686, re-enacts in substance the provisions of
previous legislation giving jurisdiction, in the case of any offence committed by a British
subject on board any British ship on the high seas, or in any foreign port or hflrlxjur, or
by a person not a British suljject on board any British ship on the higii seas, to any
court in her Majesty's dominions within the jurisdiction of which that person is found.
Sec. 687 further provides that all offences against property or person committed at any
place, either ashore or afloat, out of Her Majesty's dominions by any master, seaman or
apprentice who at the time of the offence is, or within three months previously has been
employed in any British ship, shall be deemed to be offences of the same nature and
liable to the same punishment as if committed within the jurisdiction of the Admiralty of
England,

Foreigners on British Ships.— A foreigner who. whilst on board a British ship
upon the high seas, commits an offence against British law, is amenable to sucli law, anJ
it makes no difference whether he has gone on board voluntarily or has been taken and
detained there against his will, (Reg, v. Lopez ; Reg. v. Sattler, 27 L.J. M.C. 48.)

A foreigner was convicted of manslaughter on board a British ship in the river
Garonne, in France, .35 miles from the sea, but within the ebb and flow of the tide.
(Reg. V. Anderson, L. R. 1. C.C, 161. ) A foreigner on board a British ship is entitled to the
same protection as if he were on English soil. (Reg. v. Leslie, 8 Cox, C.C, 269; ii9
L.J. M,C, 97.)

38.]

COVERING CLAUSES. 359

JnusDiCTiox OVER FOREIGN Ships. — A German vessel, under the command and

immediate direction of a German subject, collided with a British steamer naWgating the

; iglish Channel at a point within two miles and a half from Dover Beach, with the

suit that the British ship sank and a British subject on board was drowned. The

iptain of the German ship was tried and found guilty of manslaughter at the Central

: iminal Court. It was held by the majority of the Court of Criminal Appeal, that the

ntral Criminal Court had no jurisdiction to try the case. (Reg. i;. Keyn, The

lanconia, 2 Ex. D. 63 ; 46 L.J., M.C. 17.) But now by the Territorial Waters Juris-

tion Act, 1878 (41 and 42 Tic. c. 73 s. 2) an offence committed bj- any person,

w hether a British subject or not, on the open sea, within the territorial waters of Her

Majesty's dominions, is an ofiFence within the jurisdiction of the Admiral, although it

ay have been committed on board or by means of a foreign ship, and the person who

mmitted such ofiFence may be arrested, tried, and punished accordingly. By s. 7 of

13 Act " Territorial waters of Her Majesty's dominions " means any part of the open

a within one marine league of the coast measured from low water mark.

Ownership of British Ships. — Under the provisions of the Merchant Shipping

- t, 1S94, no person can own a British ship except a natural born or naturalized subject
: the Queen, or a denizen by letters of Denization, or a corporate body established

ider and subject to the law of some part of the British dominions. Every such ship
ust be registered, and every transfer must be bj- registered bill of sale. If a ship
longing to British subjects be not registered she is not recognized as a British ship,
:d is then not entitled to the benefit or protection enjoyed by British ships, or to sail
ider the British flag, or to assume the British national character.

British Merchant Ships and Colonial Laws. — It Mill now be convenient to
insider some of the obligations and liabilities of British merchant ships in the Terri-
rial waters, under the law as it existed before, and under the law as it will be after
e establishment of the Commonwealth. The jurisdiction of colonial legislatures over
litish ships whilst within the colonial ports, harbours, rivers and adjacent territorial
Iters, extends to such subjects as the following : — The governance and preservation of
■rts, the regiUation of shipping and na\'igation, the mooring of vessels, the manage-
ent of wharves and piers, the organization of marine boards and of courts of marine
-'|uin,-, pilots and pilotage, lights and signals, prevention of accidents on ships, inspec-
m of ships, equipment and survej- of ships, carriage of dangerous goods, storage of
rgoes, misconduct of passengers, misconduct of crew, health and safety of passengers,
nding of passengers, investigations respecting casualties, and inquiries into complaints
" incompetency and misconduct on the part of mariners.

Colonial Courts to Enforce Imperlvl Shipping Laws.— Bj- the Merchant
lipping Act, 1854 (17 and 1 8 Vic. c. 104) and by the amending Merchant Shipping Act, 1862

- j and 26 Vic. c. 63) legislation was adopted in order to increase the efficiency of, and
large the supervision over, the mercantile marine of England. Higher qualifications
r mates and masters were exacted, and means were adopted by which incompetency
id misc-onduct might be promptly brought before the Board of Trade, by whom certifi-
-tes to mates and masters were issued. It was further provided that the legislature of

y British possession should be able to make laws for the appointment of a court or
ibimal to inquire into charges of incompetency or misconduct on the part of masters
id mates of ships, and to canc-el or suspend the certificates of oflFenders subject to the
view of the Board of Trade. In 1865 the Victorian Parliament passed the Passengers
arbour and Navigation Act, sec. 77 of which enactetl that the Steam Navigation Board
lould be constituted a court or tribunal authorized to exercise such powers as are
entioned in or conferred by the 242nd section of the Merchant Shipping Act, 1854, and
le 23rd section of the Merchant Shipping Act, 1862. Similar Boards were established
>" other colonial legislatures.

The extra-territorial jurisdiction of Australian courts of inquiry created by local
;,dslation in the exercise of statutory power conferred by the above Imperial Acts

360 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

was considered in the case of Re Victoria Steam Navigation Board, ex parte Allan,
in which the Supreme Court held that the Victorian Board had no jurisdiction to deal
with a master holding a certificate issued by the Board of Trade, on a charge of negligence
resulting in a collision off Cape Jaffa, South Australia ; that it could only inquire into
miscondiict which had taken place within the jurisdiction of the Board, viz., within the
territorial waters of the colony in which the Board was constituted (3 A.L.T. 1, 7
V.L.R. [L] 248, June, 1881). In consequence of this decision there was a demand for
further Imperial legislation enlarging the avithority of marine boards, and in August,
1882, the Act (45 and 46 Vic. c. 76) was passed, which is now re-enacted in sec. 478 of
the Merchant Shipping Act, 1894 (57 and 58 Vic. e. 60). This section expressly
empowers the legislature of any British possession to authorize any court or tribunal to
make inquiries as to shipwrecks or other casualties affecting ships, or as to charges of
incompetency or misconduct on the part of masters, mates or engineers of ships, in the
following cases : —

(a) Where a shipwreck or casualty occurs to a British ship on or near the

coasts of the British possession or to a British ship in the course of a
voyage to a port within the British possession :

(b) Where a shipwreck or casualty occurs in any part of the world to a British

ship registered in the British possession :

which a casualty has occurred, and who are competent witnesses to the
facts, are found in the British possession :

(d) Where the incompetency or misconduct has occurx'ed on board a British

ship on or near the coasts of the British possession, or on board a British
ship in the course of a voyage to a port within the British possession :

(e) Where the incompetency or misconduct has occurred on board a British sliip

registered in the British possession :
(/) When the master, mate, or engineer of a British ship who is charged with
incompetency or misconduct on boai-d that British ship is found in the
British possession.

A British ship during its voyage on the high seas from any British port to Australia
was, before the establishment of the Commonwealth, and still is, subject solely to
British Civil and Criminal Law. Upon its entry into the territorial waters, that is within
the three mile limit of any colony, say Western Australia, it still remained subject to
British Merchant Shipping Acts, but in addition thereto it became subject to the local
laws of Western Australia, Civil and Criminal, including local navigation and shipping
regulations, so far as those laws and regulations were not contrary to British Merchant
Shipping Acts. On leaving the ports of Western Australia and passing beyond the
three mile limit, the British ship ceased to be subject to West Australian laws, and
became once more subject only to Imperial laws. Upon the same ship entering the
territorial waters of South Australia it, in like manner, came under the local laws of
South Australia, Civil and Criminal, including local navigation and shipping regulations,
so far as those laws and regulations were not repugnant to the M erchaut Shipping Acts.
On clearing the ports of Adelaide and resuming its voyage on the high seas, the British
ship again came and continued solely under British laws until it reached the Victorian
waters, where it once more came under local laws as in the cases of the other colonies
mentioned ; and so on from one Australian port to another.

Under the Constitution of the Commonwealth British ships will still be under
Imperial shipping laws, and local shipping laws not contrary to Imperial laws, but,
instead of encountering five or six different sets of local laws relating to navigation and
shipping in five or six different Australian ports, they will— when the Federal Parliament
has legislated on the subject— find onfe uniform federal law relating to navigation and
shipping operating in every port within the limits of the Commonwealth. In journeying
along the high seas between federal ports, and outside the three mile limit, British slnps
whose first port of clearance is outside the Commonwealth will not be subject to
Commonwealth law, but will, as before, remain solely under British law ; and Biitiwi

38-1

COVERING CLAUSES. 361

-iiips whose port of destinatioD is oatside the Commonwealth will also not be subject to
I ommon wealth law.

The Parliament of the Commonwealth has, onder sections 51 and 98 of the Constitution,
power to make laws relating to navigation and shipping. That power is restricted to
making laws applicable to the Commonwealth and operative within the three-mile
limit all round the ocean boundary of the Commonwealth. In order to make a Com-
monwealth law applicable to and operative on ships going from one part of the
' ommonwealth to another, and in so doing passing over the high seas outside the three
:iiile limit, it was necessary to extend the power given by section 98. This is done by
lause 5 of the Act ; without which the laws of the Commonwealth would only be
l)erative within the three mile limit. By that clause the laws of the Commonwealth
lie in force on British ships on the high seas outside the three mile limits if they are on
voyage which both begins and ends within the Commonwealth. (Mr. R. E. O'Connor's
peech in the Legislative Council of N.S.W., Parliamentarj' Debates, 1897, p. 3017.
Mr. E. Barton's speech in the Legislative Council, X.S.W., id^m., p. 3081.)

British Ships Within the Commonwealth. — Clause 5 provides that the laws of

• ae Commonwealth shall be in force on all British merchant ships whose first port of

learance and whose port of destination are within the Commonwealth. There are two

lasses of British ships which come within the meaning of this clause : (1) Intercolonial

essels exclusively engaged in the Australian trade ; (2) ocean going vessels arriving on

lie Australian coast and temporarily stajring and engaging in trade between the ports of

ae Commonwealth ; in so doing beginning and completing new voyages. For the

urposes of this clause, ships which come within the conditions specified will be

jusidered as within the jurisdiction of the Commonwealth from the beginning to the

nd of their respective voyages, even though during the course of their voyages they

travel across the high seas hundreds or even thousands of miles beyond the limits of the

Commonwealth. The first port of clearance of a ship bound by the laws of the

Commonwealth must be within the Commonwealth, and its port of destination must be

within the Commonwealth. The c-ombination of these two conditions is required ; they

I ark the beginning and end of a continuous voyage. For example, a steamer starts-

:iom her headquarters — say Melbourne ; thence she proceeds to Tasmania, thence to

New Zealand, thence to Samoa, thence to Fiji, thence to New Caledonia, thence to

Brisbane, thence to Sj'dnej-, thence to Melbourne. Dming the whole of this voyage the

- a ws of the Commonwealth would be in force in such a vessel. In the course of her

lumey she would traverse regions far beyond the limits of the Commonwealth ; yet by

he application and extension of the principle of extraterritoriality— described by some

urists as a fiction, though a very useful one — the ship is deemed to be a part of the

'Commonwealth floating on the high seas.

If it be asked what kinds of Commonwealth laws could reasonably be brought into
peration on board a Commonwealth ship sailing a thousand miles away from Australia,
attention may be drawn to those laws relating to shipping and navigation which have
litherto been within the competency of the various Australian legislatures, but which
ander the CommonMealth will be vested in the Federal Parliament Attention may be
Jso drawn to some of the other powers conferred on the Federal Parliament, such as
:hose relating to trade and commerce, weights and measures, fisheries beyond territorial
imits, the servic-e and execution of civil and criminal process, and the enforcement of
he judgments of the Com-ts of the States ; also immigration and emigration, influx of
riminals, external affiairs, the relations of the Commonwealth with the isles of the
I'acific, and the naval and military defences of the Commonwealth. It might be
xtremelj- ad^'isable, and in fact absolutely necessary, that the laws of the Common-
wealth, in reference to matters such as these, should follow a Commonwealth ship and
i'perate upon it wherever it went.

j Proposed Imperial Amesdmest. — When the Commonwealth Bill was under the
onsideration of the Imperial Government in March, 1900, the Law Officers of the Crown

362 COMMENTARIES ON THE CONSTITUTION. [Cl.6.

proposed the omission of the words of Clause 5, " in force ou all British ships, the
Queen's ships of war excepted, whose first port of clearance and whose port of destina-
tion are in the Commonwealth." (See Historical Introduction, p. 229, supra.) It was
suggested that there was no constitutional, or practical, necessity for the appearance of
those words in the Bill. It seemed to be thought that all that was desired was a grant
of power to the Commonwealth to control the coasting trade. This power, it was pointed
out, the Federal Parliament would have under section 736 of the Merchant Shipping
Act, 1894, which is not confined in its operation to the coasting trade while in terri-
torial waters. Moreover, the words, "first port of clearance" and "port of destina-
tion" in the clause in question were not free from ambiguity, and embarrassing questions
might be raised as to the law applicable to a ship clearing from one Australian port for
another after coming to Australia from a port in some other part of Her Majesty's
dominions.

In reply to this objection the Australian Delegates drew attention to section 20 of
the Federal Council Act, 1885 (see supra). It was observed that the provision of Clause
5 of the Draft Bill was much more restricted than that made by the Act of 1885. Under
the present measure the provision was made to apply to cases in which a British ship
begins and concludes her voyage within the limits of the Commonwealth. But section
20 of the Federal Council Act applied to every British ship which commenced her
voyage in any one of the colonies concerned, and also to every British sliip which con-
cluded her voyage in any one of them. In the former case the Federal Council Law
would apply to a British ship on the whole of her voyage from Australia to a port beyond
the Commonwealth ; in the latter case to a British ship on the whole of her voyage from
any point beyond the Commonwealth to Australia. In the present measure, so wide an
application was not for a moment desired to be given to any law of the Commonwealth ;
yet it was now sought to further restrict, in the hands of a much more competent legis-
lature, a power which 15 years ago the Imperial Parliament did not consider too wide
for a much inferior body : a body neither elective nor bi-cameral, and lacking both a
responsible executive and a Treasury. Dealing with the suggestion that the matter was
sufficiently provided for by section 736 of the Merchant Shipping Act, 1894, the
Delegates argued that if that view were correct then the phrase objected to was at
worst a redundancy and therefore harmless. Section 736 gave power to the Legislature
of any English possession to make laws regulating its coasting trade under certain con-
ditions. It was true that the term " British Possession," whether as defined in the Act
of 1869 or in the Interpretation Act of 1889, which preceded the present Merchant
Shipping Act, would include such a Possession as the Commonwealth of Australia, which
under the Interpretation Act would be deemed to be one British Possession including
all parts under the Central Legislature. The expression "coasting trade" was not
defined in any of the Acts cited ; it may be taken to include the trade of vessels plying
merely between the ports of a Possession within territorial limits. But the provision ;n
the Commonwealth Bill, to which exception had been taken, would apply to such ships,
on a voyage solely between two ports of the Commonwealth, even outside the three-
mile territorial limit ; the beneficial effect therefore would be, that a vessel on such
a voyage would not be exposed to the anomaly of being subject to one set of laws
at 2f miles from the coast, and to another set of laws at 3^ miles from the coast.
That this should be prevented was surely not too much to ask. Moreover, the
provision in the Bill removed a further anomaly by protecting a vessel which passed
from the territorial waters of one colony into those of another from being subjected to a
change of laws in that very operation, and by applying to her the uniform laws of tha
Commonwealth during the whole of her passage between Commonwealth porta.
While, then, the power was less than that conceded to the Federal Council, and
never abused, it was larger than that conceded by the Merchant Shipping Act, but
larger only for the most beneficial purposes. The reasonableness of the right claimed
appeared the more clearly when it was considered that one of the most useful purptJsM
of the Constitution was the facilitation of trade between the several colonies to

s 38-40.] COVERING CLAUSES. 363

an extent not hitherto possible, \rith a clear tendency towards obliterating in i-espect
(if commerce those arbitrary lines between colony and colony, which in the past
luive been productive of so much friction and hindrance. (House of Com. Pap., May
HMJO, p. 15.)

The Colonial Secretary, in answer to this contention, admitted that the words of

tion 20 of the Federal Council Act were very wide, perhaps unduly so, and if the

wers thereby conferred had been freely exercised he thought grave difficulties would

rtainly have arisen. The analogy of the Federal Council Act was, however, in his

jiinion incomplete, inasmuch as it was contemplated that all British possessions in

Australia might be represented in the Federal Council, " whereas the operation of this

Bill is at present confined to five Australian colonies." (See House Coms. Pap., May,

1900, p. 24.)

The Imperial Government, however, did not insist in the proposed omission of the

wiirds relating to British ships. Although those words were omitted in the first draft

■ proposed amendments submitted to the Delegates, they were restored in the Bill as

tually introduced in the House of Commons. (See House Ck)ms. Paps., May,

19IJ0, p. 19.)

§ 39. " First Port of Clearance."

If a British vessel began a voyage from any port outside the Commonwealth, then
e port whence she started on her voyage would be the "First Port of Clearance," and
isec^uently she would be exempt from the operation of the clause. If, upon the comple-
■11 of that voyage by disembarking her passengers and discharging her cargo, she were
artered to carry cargo or passengers from one port of the Commonwealth to another,
r first port of clearance on the new voyage, as well as her " port of destination,"
luld be within the Commonwealth, and she would carry Commonwealth law with her
>m the beginning to the end of the local voyage.

§ 40. " The Queen's Ships of War."

Public ships of war are regarded as Boating fortresses representing the sovereignty
id independence of the country to which they belong. *' A ship of war retains its
tional character with all its incilental privileges and immunities in whatever waters
niaj- go, but if members of the crew leave the ship or its tenders, or its boats, they are
ible to the territorial jurisdiction of the country into which they go. Even the
ptain is not considered to be individually exempt in respect of acts not done in his
pacity as agent of his State. In his ship he is protected; he has entire fi-eedom of
(vement ; he is under no obligation to expose himself to the exercise of the jurisdiction
the country in whose ports, harbours, bays, rivers, or other territorial waters he may
id himself ; if he voluntarily does so he may be fairly expected to take the consequences
his acts." (Hall's International Law [1895], p. 205.)

Although the extra-territoriality of a public ship does not extend to her officers and
en whilst they are on shore in a foreign country, the territorial government often
■andons cognizance and waives the punishment of oflFences committed by a public ship's
tnpanv on shore to the government to which the ship belongs. (Rivier, Principes du
•roit des Gens [1896], 1., 334-51.)

Definitions**.

6. "The Commonwealth" shall mean*' the Common-
ealth of Australia as established under this Act*^

" The States "** shall mean such of the colonies*® of New
outh Wales, New Zealand, Queensland, Tasmania, Victoria,
''^estern Australia, and South Australia, including the
j orthern Territory of South Australia, as for the time being

364 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

are parts of the Commonwealth^^ and such colonies or
territories*'^ as may be admitted into or established by the
Commonwealth as States ; and each of such parts of tlie
Commonwealth shall be called " a State."

" Original States " shall mean such States as are parts of
the Commonwealth at its establishment.

Historical Note. — Clavise 5 of the Commonwealth Bill of 1891 was as follows : —

" The term ' The States ' shall be taken to mean such of the existing colonies of
New South Wales, New Zealand, Queensland, Tasmania, Victoria, Western Australia,
and the Province of South Australia, as for the time being form part of the Common-
wealth, and such other States as may hereafter be admitted into the Commonwealth
under the Constitution thereof, and each of such colonies so forming part of the Common-
wealth shall be hereafter designated a State."

At the Adelaide session, 1897, the clause was introduced and passed in the same
words. (Conv. Deb., Adel. , pp. 625-6). At the Sydney session, a suggestion made by
the Legislative Council of New South Wales /where it had been originated by Mr. R. E.
O'Connor) to define "Original States" and "New States," was discussed ; and ulti-
mately the definition of " Original States " was agreed to. On Mr. Solomon's motion,
the words "including the Northern Territory of South Australia" were agreed to.
(Conv. Deb., Syd. [1897] pp. 231-9, 9S6-7.) At the Melbourne session, drafting amend-
ments were made before the first report ; and also after the fourth report, when the
words ' ' ' Colony ' shall mean any colony or province " were added.

In the Bill as introduced in the Imperial Parliament, the following words were
added to the definition of Commonwealth : — "and the laws of the Commonwealth shall
be colonial laws within the meaning of the Colonial Laws Validity Act, 1865." In
Committee, these words were omitted, and the words " ' Colony ' shall mean anj' colony
or province " — which it was thought might raise a doubt as to the application of the
Colonial Laws Validity Act — were also omitted. (See pp. 222-248, .351-2, supra.)

§ 41. " Definitions."

The definitions in the Act are remarkably few, being confined to the words
" Commonwealth " and " State " — both old English words which receive by this Act a
new technical application — and the phrase " Original States." Every other word and
phrase of the Constitution is left to be construed from its natural meaning and its
context.

It is safer to abstain from imposing, with regard to Acts of Parliament, any further
canons of construction than those applicable to all documents. (Lanipliigh v. Norton,
22 Q.B.D. 452.) When a doubt arises upon the construction of the words of an Act of
Parliament, it is the duty of the Court to remove the doubt by deciding it ; and when
the Court has given its decision, the point can no longer be considered doubtful. (Bell
V. Holtby, L.R. 15 Eq. 178.) Acts should be construed according to the intent of
Parliament. If the words of the statute are themselves precise and unambiguous, then
no more can be necessary than to expound those words in their natural and ordinary
sense. The words themselves, in such case, best declare the intention of the legislature.
(Sussex Peerage, 11 Cl. and F. 86 ; 8 Jur. 793.) The Court knows nothing of the inten-
tion of an Act, except from the M'ords in wliich it is expressed, applied to the facts
existing at the time. (Logan v. Courtown, '20 L .T. Ch. 347 ; Digest of Eng. Ca.
L., xiii., p. 1888.) Anyone who contends that a section of an Act of Parliament is not
to be read literally, must be able to show one of two things, either that (1) there is some
other section which cuts down its meaning, or else (2) that the section itself is repugnant
to the general purview of the Act. (Nuth v. Tamplin, 8 Q.B.D. 253. Id. p. 1889.) " I
prefer to adhere to the golden rule of construction that the words of a statute are to be
read in their ordinary sense, imless the so construing them will lead to some incongruity
or manifest absurdity." (Per Grove, J., Collins t'. Welch, 5 C.P.D. at p. 29. Id. p.
1889.) " The more literal consti-uction of a section of a statute ought not to prevail if

§§41-42.] COVERING CLAUSES. 365

it is opposed to the intentions of the legislature as apparent by the statute, and^if the
words are sufficiently flexible to admit of some other construction by which that intention
will be better effectuated." (Per Lord Selborne. L.C., Caledonian R. Co. v. North
British R. Co., 6 App. Cas. rJ2 ; Id. p. 1889.) " Xo Court is entitled to depart from
the intention of the legislature as appearing from the words of the Act because it is
thought unreasonable. But when two constructions are open, the Court may adopt the
more reasonable of the two." (Per Lord Blackburn, Rothes v. Kirkcaldy Waterworks
Commissioners, 7 App. Cas. 702 ; Id. p. 1889.)

" If Me can fairly constnie an Act so as to carry out what must ob\'iously have been
the intention of the legislature, although the words may be a little difficult to deal with,
and although they may possibly admit of more than one interpretation, we ought, from
those general considerations, to adopt the interpretation which will make the law
uniform, and will reme<lv' the evil which prevailed in all the cases to which the law can
be fairly applied." (Per Jessel, M.R., Freme v. Clement, 44 L.T 399, id. p. 1890 )

"In order to constnie an Act of Parliament, the court is entitled to consider the
state of the law at the time it was enacted." (Per Lord Esher, M.R., Philipps v. Rees,
24Q.B.D. 17, id. p. 1892.)

It is useless to enter into an inquiry with regard to the history of an enactment,
and any supposed defect in former legislation on the subject which it was intended to
cure, in cases where the words of an enactment are clear. It is only material to enter
into such inquiry where the words of an enactment are ambiguous and capable of two
meanings, in order to determine which of the two meanings was intended. (Per Lord
Esher, M.R., Reg c. London [Bishop], 24 Q.B.D. 213.) If the words are really and
fairly doubtful, then, according to well-known legal principles and principles of common
sense, historical investigation may be used for the purpose of clearing away the doubt
which the phraseology of the statute creates. (Keg. r. Most, 7 Q.B D. 251.) The court
cannot impute to the legislature, in passing statutes confirming titles createfl by means
of parliamentary powers, ignorance of the transactions which had taken place in exercise
of such powers. (Beadon v. King, 22 L.J. Ch 111, Dig. of Eng. Ca. L. xiii. p. 1S92.)

It is the most natural and genuine exposition of a statute to construe one part by
another, for that best expresseth the meaning of the makers, and this exposition is ex
visceribii-f actus. (Reg. i'. Mallow Union, 12 Ir. C. L.R. 35.) The common law rights of
the subject, in respect of the enjoyment of his property, are not to be trenched upon by
a statute, unless such intention is shown by clear words or necessary implication.
Statutes restrictive of the common law receive a restrictive construction. (Ash i: Abdy,
3 Swans. 634, Dig. of Eng. Ca. L. xiii. p. 189.3.)

In construing Acts which infringe on the common law, the state of the law before
the passing of the Act must be ascertained to determine how far it is necessary to alter
that law, in order to carry out the object of the Act. (Swanton r. Goold, 9 Ir. C. L.R.
234.) A right to demand a poll is a common law incident of all popular elections, and
as such cannot be taken away by mere implication which is not necessary for the
reasonable construction of a statute. (Per Brett, L.J., Reg. v. Wimbledon Local Board,
8 Q.B.D. 459.) The general law of the country is not altere<l or controlled by partial
legislation, made without any special reference to it. (Denton v. Manners, 27 L. J. Ch.
199 ; affirmed 27 L..J. Ch. 623, Dig of Eng Ca. L. xiii. p. 1893.)

As a rule, existing customs or rights are not to be taken away by mere general
words in an Act. But, without words especially abrogating them, they may be
abrogated by plain directions to do something which is wholly inconsistent with them.
And this may be the case though the Act is a private Act, and though the particular
custom may liave been confirmed, years before, bv a verdict in a court of law. (Green
V. Reg., 1 App Cas. 51.3, id. p 1894.)

" When there are ambiguous expressions in an Act passetl one or two centuries ago,
it may be legitimate to refer to the construction put upon these expressions throughout
a long course of years, bj' the unanimous consent of all parties interested, as evidencing
what must presumably have been the intention of the legislature at that remote period.
But I feel bound to construe a recent statute according to its own terms, when these are
brought into controversy, and not according to the views which interested parties may
have hitherto taken." "(Per Lord Watson, Clyde Navigation Tinistees v. Laird, 8 App.
Ca«. 673, id. p. 1895.)

§ 42. '« Shall Mean."

Au interpretation clause is a modem innovation, and frequently does a great deal o
harm. (Lindsay t;. Cundy, 1 Q B.D. 348; Reg. v. Boiler E.xplosion Act Commissioners,
(1891), 1 Q.B. 703; Dig Eng. Ca. L. Vol. xiii. p. 1886.)

"But for the interpretation clause, no difficulty as to the construction would have
arisen. But I think an interpretation clause should be used for the purpose of
interpreting words which are ambiguous or equivocal, and not so as to disturb the

366 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

meaning of such as are plain." (Reg. v. Pearce, per Lush, J., 5 Q.B.D. 386, 3S9 ;
Robinson r. Barton -Eccles, 8 App. (as. 798; id. 1885.)

An intei-pretation clause in an Act should be understood to define the meaning of
the word thereby interpreted, in cases as to which there is nothing else in the Act
opposed to or inconsistent with that interpretation. (Midland R. Co t'. Ambergate,.
Nottingham and Boston and Eastern Junction R. Co., 10 Hare, 359, id. p 1885 )

§ 43. "Commonwealth ... as Established Under

this Act."

We have summarized the literary history of the name Commonwealth. (Note § 17,
supra.) We now come to the statutory definition of the term. This definition, it will'
be observed, is a vague and technical one ; the dominant words being "as established
under this Act." For the true nature and primary meaning of the expression, the
student is required to examine the first six clauses of the Act, which deal with the
establishment of the new community. The Commonwealth is not in any way defined or
explained by the Constitution itself ; that deals only with the governing organization of
the Commonwealth.

The first observation to be made is that the Commonwealth sliould not be confounded
with the Constitution or with the Government. The Commonwealth, as a political
entity and a political partnership, is outside of nnd supreme over the Constitution ; it is
outside of and supreme over the Government provided by that Constitution. The
Government of the Commonwealth, consisting of two sets of legislative, executive and
judicial departments, central and provincial, does not constitute the community. At the
back of the Government lies the amending poM-er — the quasi-sovereign organization of
the Commonwealth within the Constitution ; at the back of the Commonwealth and the
Constitution is the British Parliament, its creator and guardian, whose legal relationship-
to it requires that the Commonwealth should be described, not as an absolutelj- sovereign
organization, but by some term indicating a degree of subordination to that bodj'.
(Burgess, Political Sc, I., p. 57.)

The Commonwealth is established by a clause in the Imperial Act which could
operate antecedently to and independently of the Constitution detailed in Clause 9,.
and of the machinery and procedure therein specified. In other words, the Common-
wealth is the legal objective realization of an Australian (2?ia«;-Federal State or a qua-ii-
National State, using those phrases in a senfe to be hereafter explained. What, then,
are the essential attributes and cliaracteristics of the Commonwealth " as established by
the Act ? " These maj' be thus summarized : —First, its population basis ; secondly, its
territorial basis; thirdly, its federal principle; fourthly, its Imperial lelationship ;
resulting in the establishment of a united people, upon a defined territory, organized on
a federal plan, consistently with the Imperial connection, legally equipped for political
action and development.

(1.) PopuIjATIon Basls.— Clause 3, illustrated by the preamble of the Act, explicitly
provides that on the daj' appointed by the Queen's proclamation the people of the con-
curring colonies shall be united in a Federal Commonwealth. This union is not founded
on force or coercion, but on a consensus of opinion induced bj' a consciousness of common
interests and mutual benefit. The people so agreeing had all the elements of ethnic
unity, such as sameness of race, language, literature, history, custom, faith and order of
life, combined with the contributing influences of antecedent intercourse and territorial
neighbourhood. (Burgess' Political Sc, vol. I., p. 2.)

Hence there were, co-existing with the desire for union, all the conditions and
requirements essential for successful and harmonious union. These people, then, for-
merly living under separate sj-stems of government are, by Clause 3 of the Act, declared
to be united in a Federal Commonwealth, and by Clause 4 the Commonwealth is estab-
lished. If the Act had given no further explanation, and had enumerated no other
incidents or attributes of the Commonwealth, it might have been contended that the

§43.] COVERING CLAUSES. 367

Commonwealth was merely a personal union of the people without anj- other clement of
cohesion and organization ; but all doubt on that point is removed by important phrases
which occur in other clauses.

(2.) Territorial Basis. — In Clause 5 a distinction is draiJTi between the people
" of every State ' and " of every part of the Commonwealth." One expression relates to
human beings, as residents of States, whilst the other eWdently refers to land or
country which might not be within a State, but might nevertheless be within the
Commonwealth. In the clause now under re\new the States are defined as such of the
colonies as form the union and become "parts of the Commonwealth." In the
Imperial Acts erecting the colonies they are described as territories included within
certain geographical boundaries. Hence, if the colonies are parts of the Commonwealth,
their teiTitories are by the terms of the definition *' parts of the Comnion wealth."
These woi-ds, therefore, clearly show that the Commonwealth is a territorial com-
munity, having the right to conduct its governing operations in, over, and through
certain territory, and, when they are read in conjunction with certain sections of the
Constitution, it is plain that the Commonwealth has the right of eminent domain which
may be exercised in the manner prescribed by the Constitution throughout its confines,
when necessary for the execution and enjoyment of the powers conferred by the Consti-
tution. (Kohl V. United States, 91 CS., 367.) So far the Commonwealth '"established
under this Act " is a united people, organized within a united territory ; the people
being the population of the former colonies, and the territory being coincident with the
territorial limits of the former colonies in addition to such other territorj- as may be
added to the Commonwealth under section 122. Two other important features of the
Commonwealth are, however, discoverable in the actual language of the Act.

(3.) Federal Fokm. — The onlj- word in the Act creating the Commonwealth which
is at all suggestive of structural design or functioiml distribution is the word ''federal; "'
it occurs once in the preamble and once in the clause under re%iew. as descriptive of the
form and structure of the new community. It is true that it appears in several passages
in the constitution, but there it is descriptive of the central governing organs of the
comraunit}-, and not of the community itself. The Commonwealth is declared to be a
Federal Commonwealth. The original and fundamental idea implied b\- "federal" and
its various shades of meaning, as used in modem political literature, have been already
analysed. (See Note. § 27, " Federal," supra.)

(4.) Imperial Relationship.— By the preamble the Commonwealth is declared to
be " Under the Crown ; " it is constitutionally a subordinate, and not an independent
Sovereign communitj-, or state. But its population is so great, its territory so va-st, the
ob\'ious scope and intention of the scheme of union are so comprehensive, whilst its
political organization is of such a superior type, that it is entitled to a designation which,
whilst not conveying the idea of complete sovereignty and independence, will serve to
distinguish it from an ordinary provincial society.

Q CASi- Nation AL Statk. — Burgess contends tiiat there is no such thing in political
scienc-e as a "federal State;" that this adjective is applicable only to the organs of
government and the distribution and division of governing powers ; that its application
to the State itself is due to a confusion of State with Government. (Political Sc, vol. I.
p. 165.) What is really meant by such expressions as " Federal State " or " Federal
Commonwealth," technically inaccurate, according to this eminent jurist, is a National
State, with a federal government — a dual system of government under common
sovereignty. Such a State comprehends a population previously divided into a group of
independent States. Certain causes have contributed to a union of this gi'oup of States
into a single State, and the new State has constructed a government for the general
affairs of the whole State, and has left to the old bodies, whose sovereignty it has
destroyed, certain residuary powers of government to be exercised by them so long as the
new State makes no other disposition. The old States become parts of the Government
in the new States, and nothing more. (Political Sc, I. 79.) Tlie Commonwealth

368 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

therefore, may be said to possess nearly all, but not quite all, the characteristics and
features of a national State. In order to denote its subordinate relation as an integral
part of the British Empire, and not an independent sovereign State, some qualifying
adjective or particle is necessary, such as " semi " or " quasi." We may therefore define
the Commonwealth, established by this Act, as a q nasi -na,tiona\ State (or «emi-national
State) composed of a homogeneous and related people of ethnic unity, occupjnng a fixed
territory of geographical unity, bound together by a common Constitution, and organized
by that Constitution under a dual system of provincial and central government, each
supreme within its own sphere, and each subject to the common Constitution.

Secoxuary Mbaxing of " Commonwealth." — In several sections of the Constitu-
tion the term " Commonwealth '' is used inartistically to denote the Central Govern-
ment as contrasted with the Governments of the States, i.e., " The Legislative Power of
the Commonwealth," sec. 1 ; " the Executive Power of the Commonwealth," sec. 61 ;
" the Judicial Power of the Commonwealth," sec. 71. These expressions refer to the
Legislative, Executive, and Judicial Powers granted by the Constitution to the various
organs of the Central Government. In the American Constitution the term " United
States" is sometimes used to describe the Union and sometimes to denote the Central
Government of the Union. These are instances of the secondary use and significance
of corresponding terms in both Constitutions. The secondary use and meaning of
" Commonwealth " must be distinguished from its primary and proper meaning as
defined in the constructive clauses of the Imperial Act.

§ 44. "States."

Various Meanings. — We will first consider the term " State" as popularly under-
stood in English speaking communities, without reference to technical or external
relations; secondly, " State " in its international significance; thirdly, " State " in its
federal significance ; and finally, " Nation" as contrasted with " State."

Popular Significance — In a popular sense the word "State" is often employed to
denote the governing political authority of a country as distinguished from the inhabi-
tants thereof ; the mechanism of government ; the organism of government as opposed
to the persons who have to submit to the rule of the goverinnent ; the central govern-
ment, in contradistinction to the local governing authorities and the local governing
institutions. Sometimes it is specially used to contrast the secular and political with
the ecclesiastical organization of a country. (Ency. of British Law, vol. XL, p. 710.)

International Significance. — "State" has a technical meaning known to inter-
national law, according to which it is an organized political entity, having certain
recognizable predicates, such as population, territory, independence of other entities
like itself, and an organized system of self-government enabling it to determine its own
internal organization and development. (Sheldon Amos, The Science of Politics (1883),
p. 64.) The modern notion of the State was not brought into clear consciousness till a
number of parallel States presented themselves side by side, and each of them bj-
enforcing its own claim against the others manifested to itself and to the world its own
personality, independence and integral unity. [Id.) For the purpose of comparison
other definitions of '* State " are here appended.

" A State is a coUecti ve body composed of a multitude of individuals united for
their safety and convenience and intended to act as one man. Such a bodj' can be only
produced by a political union, by the consent of all persons to submit their own private
wills to the will of one man or of one or more assemblies of men to whom the supreme
authority is entrusted, and this will of that one man or one or more assemblies of men
is, in different States, according to their different constitutions understood to be law."
(Blackstone's Commentaries. I. 52.)

" 1 his description of a State, it will be observed, omits all reference to territoriality
and independence of other States ; as such it is deficient. Further it is only applicable
to States in which the supreme authority is entrusted to the will of one man, or one or
more assemblies of men, and is not applicable to a federation in which the ultimate
power is reserved to the people. (Judge Wilson's Comments on Blackstone's theory, 2
Dallas, 458.)

§44.]

COVERING CLAUSES. 369

"For all the purposes of international law, a State may be defined to be a people
permanently occupying a fixed teiTitory, bound together by common laws, habits, and
customs into one body politic, exercising, through the medium of an organized Govern-
ment, independent sovereignty and control over all persons and things within its
boundaries, capable of making peace and war, and of entering into international relations
with other communities." (PhiUimore's International Law, I , p 81.)

" By a sovereign State we mean a community, or number of persons permanently
organized under a sovereign Government of their own ; and by a sovereign Government
we mean a Government, however constituted, which exercises the power of making and
enforcing law within a community, and is not itself subject to any superior Government.
These two factors, the one positive, the other negative, the exercise of power and the
absence of superior control, compose the notion of sovereignty, and are essential to it."
(Montague Bernard, Neutrality of Great Britain during the American Civil War.)

" The State is a particular portion of mankind viewed as an organized unit, and its
characteristics are the comprehension of indiN^iduals within its territory, the exclusive-
ness of its powers, its permanence and its sovereignty, that is its absolute, unlimited,
and univei'sal power over individuals who are its subjects. These constitute the essence
of a State." (Burgess, Political Sc, I., p. 51-2.)

" The State is now the people in sovereign organization. This is an immense
advance in the development of the State. It is the beginning of the modem political
era. Under its educating influence the consciousness of the State spreads rapidly to the
great mass of the population, and the idea of the State becomes completely secularized
and popularized. The doctrine that the people, in ultimate sovereign organization, are
the State, becomes a formulated principle of the schools, and of political science and
literature. The jurists and publicists, and the moral philosophers, lead in the evolution
of the idea. The warriors and the priests are assigned to the second place. The
.sovereign people turn their attention to the perfecting of their own organization. They
lay hands upon the royal power. They strip it of its apparent sovereignty, and make it
purely office. If it accommodates itself to the position, it is allowed to exist ; if not, it
is cast aside. At last the State knows itself, and is able to take care of itself. The
fictions, the make-shifts, the temporary supports, have done their work, and done it
successfully. They are now swept away. The structure stands upon its own foundation.
The State, the realization of the universal in man, in sovereign organization over the
particular, is at last established — the product of the progressive revelation of the human
reason through history." (Burgess, id., p. 66.)

" A colony is, at the outset, no iState. It is local government, with perhaps more
or less of local autonomy. It may grow to contain in itself the elements to form a State,
and may become a State by revolution, or by peaceable severance from the motherland ;
but before this, there is one simple State, and after it, there are two simple States, but
at no time is there a compound State. If the motherland should so extend its state
organization as to include the colony as active participant in the same, the state
organization would still be simple ; it would only be widened. A larger proportion of
the population of such a State would be thereby introduced into the sovereign body.
The only change which could be eflected in this manner, as to the form of State, would
be possibly the advance from monarchy to aristocracy, from aristocracy to democracy.
Tue sovereignty would not be divided between the motherland and the colony, for the
sovereignty is and must be a unit. It must be wholly in the motherland or wholly in
the motherland and colony, as one consolidated, net compounded, organization." (Bur-
gess, id., p. 77-8.)

Federal Si'jnijicance. — The term "State" has also a special meaning applied to a
federal system. In federal nomenclature a State is one of a number of communities
formerly autonomous and self-governing, such as the States of America, and the States of
Germany, which have agreed to transfer a portion of their political power to a union of
the States, in the governing operations of which they retain an active share. Inter-
nationally such communities have no status as States ; they are States only in a titular
«ense. " The old States become parts of the government in the new State, and nothing
more. It is no longer proper to call them States at all. It is in fact only a title of
honour, without any corresponding substance." (Burgess, Political Sc, I., p. 80.) They
could, with equal convenience and propriety, be designated by other names, such as the
Provinces of Canada, and the Cantons of Switzerland. Blackstone's definition, and all
other standard definitions of a State would, of course, be quite inapplicable to those
communities called " States " which are merely parts of a federal or national State,
using those terms in the same sense previously discussed. A "State," therefore, in the
ordinary sense of a federal constitution, is said to be a political community of free
•24

370 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

citizens, occupying a territory of defined boundaries, and organized with other sitnilar
communities, under a government sanctioned and limited by a written constitution, and
established by the consent of the governed. It is tlie union of such States, under a
common constitution, that forms the distinct and greater political unit which the
American constitution designates as the United States. (Texas v. White, 7 Wall., 721 )
A State such as one of the United States of America is a body of political co-equals, or
units, commonly called " the people," in whom, as electors, the sovereign and uncon-
trollable power originally resides, and whose will, as expressed and proclaimed by them
in their written Constitution, is their sole organic law and bond of political existence.
The United States are a communit}' of such States, politicallj' united only by a federal
constitution and general government founded therein. (Bateman, Political and Consti-
tutional Law, p. 21.)

" The States were not ' sovereigns' in the sense contended for by some. Thej^ did
not possess the peculiar features of sovereignty — they could not make war, nor peace,
nor alliances, nor treaties. Considering them as political beings, they were dumb, for
they could not speak to any foreign sovereign whatever. They were deaf, for they
could not hear any proposition from such sovereign. They had not even the organs or
faculties of defence or offence, for they could not of themselves raise troops, or equip
vessels, for war. On the other side, if the union of the States comprises the idea of a
confederation, it comprises that also of consolidation. A union of the States is a union
of the men composing them, from whence a national character results to the whole.
Congress can act alone without the States, they can act (and their acts will be binding^
against the instructions of the States. It they declare war, war is de jure declared ;
captures made in pursuance of it are lawful ; no acts of the States can vary the situa-
tion, or prevent the judicial consequences. If the States, therefore, retained some
portion of their sovereignty, they had certainly divested themselves of essential portions
of it. If they formed a confederacy in some respects, they formed a nation in others.
The Convention could clearly deliberate on and propose any alterations that Congress
could have done under the Federal Articles. And could not Congress propose, by virtue
of the last article, a change in any article whatever, and as well that relating to the
equalitj' of sufi'rage as any other ? He made these remarks to obviate some scruples
which had been expressed. He doubted much the practicability of aimihilating the
States ; but thought that much of their power ought to be taken from them." (Rufua
King in the Federal Convention 1788 ; Elliott's Debates 2nd ed. V., pp. 212-213 )

''Some contend that the States are sovereign, when in fact they are only political
societies. The States never possessed the essential rights of sovereignty. Thej' were
always vested in Congress. Their voting as States in Congress is no evidence of their
sovereignty. The State of Maryland voted by counties. Did this make the counties
sovereign ? The States, at present, are only great corporations, having the power of
making by laws, and these are effectual only if they are not contradictory to the general
confederation." (Madison in the Federal Convention ; Elliott's Debates 2nd ed. I.,
p. 461.)

A great controversy went on in America for many years as to whether the States,
as integrated in the federal constitution, formed a union of independent commonwealths
acting together for the limited purposes of general government, or whether they formed
a single sovereign and independent political State composed of the whole mass of the
American people. A few years before 1889, when Mr. Bryce published his book, the
American Protestant- Episcopal Church at its annual Convention introduced, among the
short sentence prayers, one suggested by an eminent New England divine, " O Lord,
bless our nation." Next day the prayer was brought up for reconsideration, when so
many objections were raised by the laity to the word nation, as importing a recognition
of national unity, that it was dropped, and instead were adopted the words, "O Lord,
bless the United States." Referring to this incident Mr. Bryce says : —

" But it is only the expression, on its sentimental side, of the most striking and
pervading characteristic of the political system of the country, the existence of a double
government, a double allegiance, a double patriotism. America is a Commonwealth of
commonwealths, a Republic of republics, a State which, while one. is nevertheless com-
posed of other States even more essential to its existence than it is to theirs." (The
American Commonwealth, I., p. 1*2.)

•* The acceptance of the Constitution of 1789 made the American people a nation.
It turned what had been a League of States into a Fedeial State, by giving it a National
Government, with tlircct authority over all citizens. But as this national government

§44.]

COVERING CLAUSES. 371

was not to supersede the governments of the States, the problem which the Constitu-
tion-niakers had to solve was two-fold. They had to create a central government.
They had also to determine the relations of this central government to the States as
well as to the individual citizen. An exposition of the Constitution and criticism of its
working must therefore deal with it in these two aspects ; as a sj'stem of national
government built up of executive powers and legislative lx)dies, like the monarchy of
England or the republic of France, and as a Federal S5'^stem linking together and
regulating the relations of a number of commonwealths which are for certain pui-poses,
but for certain purposes only, subordinatetl to it." {Id., p. 29. j

"The government of the United States is federal government. By this I do not
mean that the central government alone is a federal government. It is time that this
terra is generalh* applied to it, but I think this arises from the mistaken assumption
that it is the government of a JFederal State. I think I have shown that there is no such
thing as a federal State ; that, in what is usually called the federal system, one State
employs two separate and largely independent governmental organizations in the work
of government. What I mean, therefore, in the proposition that the government of the
United States is federal government, is that the whole governmental system is federal
and that the central government is one of two governmental organizations employed by
the Stat«." (Burgess, Political Sc. IL, p. 18.;

A Confederacy. — A confederacy is not a State. The members of the confederacy
remain separate States. The confederacy has no sovereignty ; it is merely a system of
government founded on inter-state treaty dissolvable at will.

Common WE.VLTH and States. — As we have already seen. Dr. Burgess contends
that there is no such thing as a federal State. A federation, he says, is merely a dual
system of government under a common sovereignty. (Political Sc, I., p. 79.) This
definition is partly in conflict with that of Professor Dicey, who recognizes the possibility
of a federal State, which he defines as a political contrivance intended to reconcile
national unity and power with the maintenance of State rights. (Law of the Constitu-
tion, p. 131.) It does not agree with that of Mr. Bryce, who in the foregoing passage
describes the United States as a Federal State. (American Comm., p. 12.)

From this conflict of literary authority we turn to the Imperial Act constituting the
Commonwealth, where we find it described as a Federal Commonwealth, and we may
assume that the expression is there used by the fraraers in either the first or the second
of the four meanings already analysed (see Note, § No. 27, "Federal," supra), viz., as
(1) descriptive of a union of States,, linked together as co-equal societies, forming one
political system, regulated and co-ordinated in their relations to one another b\' a
common Constitution ; or (2) as descriptive of the new community- formed bj' such
union. In this Act the term " States " is used as descriptive of those co-equal societies.

The Commonwealth, in almost every feature, answers the German expression
Bundfjiftaat or composite State. In this sense it may be described as a single State
which is administered by a dual system of government — one set of ruling organs dealing
with those matters common to the whole State and another dealing with those relating
to the several communities, considered as separate entities. (R. R. Garran, The Coming
Commonwealth, p. 17.)

Nation. —As an abstract definition, a Nation may be described as a population of ethnic
unit}' inhabiting a territory of geographic unity. By ethnic unity is meant a population
having a common language, a common literature, common traditions and historj', common
customs, and a common consciousness of rights and wrongs. By geographic unity is meant
a territory separated from other territory by natural physical boundaries. The nation, as
thus defined, is the nation in perfect and complete existence, and this is hardly as yet
anywhere to be found. (Burgess, Political Science, I., p. 2.) Where geographic and
ethnic unities coincide, or ver}- nearly coincide, the nation is almost sure to become a
State. The nation must pass through many preliminarj- stages in its development before
it reaches the maturity of a political State. (Id. p. 3. )

" Not all nations, however, are endowed with political capacity or great political
impulse. Frequently the national genius expends itself in the production of language,
art, or religion ; frequently it shows itself too feeble to bring even these to any degree
of perfection. The highest talent for political organization has been exhibited by tlie Aryan

372 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

nations, and by these unequally. Those of them remaining in the Asiatic home have
created no real States ; and the European branches manifest great differences of capacity
in this respect. The Celt, for instance, has shown almost none ; the Greek but little,
while the Teuton really dominates the world by his superior political genius. It is
therefore not to be assumed that every nation must become a State. The political sub-
jection or attachment of the uupolitical nations to those possessing political endowment
appears, if we may judge from history, to be as truly a part of the course of the world's
civilization as is the national organization of States. I do not think that Asia and
Africa can ever receive political organization in any other way. Of course, in such a
state of things, the dominant nation should spare, as far as possible, the language,
literature, art, religion and innocent cixstoms of the subject nation ; but in law and
politics it is referred wholly to its own consciousness of justice and expedience. Lastly,
a nation may be divided into two or more States on account of territorial separation — as
for example, the English and the North American, the Spanish -Portuguese and the South
American and one of the results of this division will be the development of new and
distinct national traits. From these reflections, I trust that it will be manifest to the
mind of every reader how very important it is to distinguish clearly the nation, both in
word and idea, from the State ; preserving to the former its ethnic signification, and
using the latter exclusively as a term of law and politics. (Burgess, Political Sc, I.,
pp. 3-4.)

§ 45. " Parts of the Commonwealth."

Territoriality of the Commonwealth. — The territorial basis of the Common-
wealth has been already briefly referred to. The above words so clearly and
emphatically establish this principle, that special attention should be drawn to them at
this stage. Grotius, in his celebrated treatise, wrote : " There are commonly two things
which are subject to sovereignty (Imperium); first, persons, which alone sometimes
suffice, as an army of men, women and children seeking new plantations ; secondly,
lands, which are called territory." (De Jure Belli et Pace II, pp. 3 and 4.) The case
contemplated by Grotius as presenting the possible condition of a non-tei'ritorial
sovereignty could scarcely occur in our time. It would be difficult to recognize the
existence of a State without its undisputed possession of a defined territory ; the only
approach to such a phenomenon that might temporarily arise would be a rebel army
wandering from place to place and recognized as a belligerent, which is tantamount to
being recognized as a State. (Encyc. of the Law of England, Vol. xi. p. 710.) This,
however, would be a feeble example of a State. It would have, at best, a precarious
existence ; its occupation of territory w ould be shifting, luicei tain, and undefined ; it
would lack that continuity, cohesion, and recognition which are the essential attributes
of a State. On the whole, therefore, the dictum of this distinguished jurist, whatever
possible application it might have had in his time (1583-1645), may be regarded as
untenable in the present age, in which territorial occupation is looked upon as one of
the most important factors of the constitution of a true State. The inevitable tendency
towards the establishment of territorial sovereignt}% as an advance on personal and
tribal sovereignty, is an historical fact of great significance. It is thus referred to by
Sir Henry Maine : —

"From the moment when a tribal community settles down finallj' upon a definite
space of land, the Land begins to be the basis of society in place of Kinship. The
constitution of the Family through actual blood-relationship is of course an observable
fact, but, for all groups of men larger than the Family, the Land on which they live
tends to become the bond of union between them at the expense of Kinsliip, ever more
and more vaguely conceived. V\ e can trace the development of idea both in the large
and now extremely miscellaneous aggregations of men combined in States or Political
Communities, and also in the smaller aggregations collected in Village-Communities and
Manors, among whom landed property took rise. The barbarian invaders of the
Western Roman Empire, though not uninfluenced by former settlements in older homes,
brought back to Western Europe a mass of tribal i(\eas which the Roman dominion had
banished from it ; but, from the moment of their final occupation of definite territories,
a transfoi-mation of these ideas began. Some years ago I pointed out (Ancient Law, pp.
103 et neq.) the evidence furnished by the history of International Law that the notion
of territorial sovereignty, which is the basis of the International system, and which is
inseparably connected with dominion over a definite area of land, very slowly substituted

§§ 45-46. J

COVERING CLAUSES. 373

itaelf for the notion of tribal sovereignty. Clear traces of the change are to be seen in
the official style of kings Of our own kings. King John was the first who always called
himself King of England. (Fi-eeman, 'Norman Conquest,' 1. 82, 84.) His predecessors
commonly or always called themselves Kings of the English. The style of the king
reflected the older tribal sovereignty for a much longer time in France. The title of
King of France may no doubt have come into use in the vernacular soon after the
accession of the dynasty of Capet, but it is an impressive fact that, even at the time of
the Massacre of St Bartholomew, the Kings of France were still in Latin Reges
Francornm, and Henry the Fourth only abandoned the designation because it could not
be got to fit in conveniently on his coins with the title of King of Navarre, the purely
feudal and territorial principality of the Bourbons. (Freeman, loc. cit.) We may bring
home to ourselves the transformation of idea in another way. England was once the
country which Englishmen inhabited. Englishmen are now the people who inhabit
England. The descendants of our forefathers keep up the tralition of kinship by
calling themselves men of English race, but they tend steadily to become Americans and
Australians. I do not say that the notion of consanguinitj' is absolutely lost, but it is
extremeh' dUuted, and quite suljordinated to the newer view of the territorial
constitution of nations. The blended ideas are reflected in such an expression as
• Fatherland,' which is itself an index to the fact that our thoughts cannot separAte
national kinship from common country. No doubt it is true that in our day the older
conception of national union through consanguinity has seemed to be revived by theories
which are sometimes called generally theories of Nationality, and of which particular
forms are known to us as Pan-Sclavism and Pan-Teutonisra. Such theories are in truth
a product of modern philology, and have grown out of the assumption that linguistic
affinities prove community of blood. But wherever the political theorj- of Nationality is
distinctly conceived, it amounts to a claim that men of the same race shall be included,
not in the same tribal, but in the same territorial sovereignty. We can perceive, from
the recortls of the Hellenic and Latin city-communities, that there, and probably over a
great part of the world, the substitution of common territory for common race, as the
basis of national union, was slow, and not accomplished without very violent stniggles."
(Maine's Early History of Institutions, 72-75.)

§ 46. " Such of the Colonies.*"

New South Wales. — Tlie area of this colon}-, the oldest established of the Austra-
lian group, is 306,066 square miles, it is botmded on the east by the Pacific ocean, on
the south by the eolonj- of Victoria, on the north by the colony of Queensland, and on the
west by the colony of South Australia. Population, 31st Dec, 1899, 1,348,400 ; public
revenue from all sources, 1898-9, £9,572,912. Executive Government at the passing of
the Commonwealth of Australia Constitution Act : — Governor and Commander in-Chief,
the Right Honourable William Earl Beauchamp, K.C.M.G. ; Lieutenant-Governor, Sir
Frederick Matthew Darley, K.C.M.G., C.J. Administration— Premier, Colonial Trea-
surer, and Minister for Railways, Sir William J. Lyne ; Colonial Secretary, the Hon.
John See ; Secretary for Lands, the Hon. T. H. Hassall ; Secretary for Public Works,
the Hon. E. W. O Sullivan ; Attorney-General, the Hon. B. K. Wise, Q.C.; Minister
for Public Instruction and Industry, the Hon. John Perry ; Minister for Justice, the
the Hon. W. H. W^ood ; vSecretary for Mines and Agriculture, the Hon. J. L. Fegan ;
Postmaster-General, the Hon. W. P. Crick ; Representative in the Legislative Council,
the Hon. F. B. Suttor.

New Ze-^laxd. — There are two principal islands, known as the North and Middle
Islands, besides the South or Stewart's Island, and small outlying islands. The group
is nearly 1,000 miles long, and 200 miles across at the broadest part. Its coast line
extends over 4,000 miles New Zealand is situated 1,200 miles to the east of the
Australian continent. The area of New Zealand is estimated to embrace 104,471 square
miles, of which the North Island comprises 44,468 squai-e miles, the Middle Island
58,5-25, and Stewart's Island 665 square miles. Population, 3Ist Dec, 1898, 743,463 ;
public revenue, 1898-9, £5,258,228. Executive Government at the passing of the
Commonwealth of Australia Constitution Act :— Governor and Commander-in-Chief, the
Right Hon. the Earl of Ranfurly, K.C.M.G. Administration— Premier, Treasiurer, Com-
missioner of Trade and Customs, Minister of Labour, Minister of Native Afiiairs, the
Right Hun. R. J. Seddon, P.C.; Colonial Secretary, Postmaster-CJeneral, Minister of

374 COMMENTARIES ON THE CONSTITUTION. [Cl. 6.

Railwaj's, Iiiduetriea, and Commerce, the Hon. J. G. Ward ; Minister of Lands and
Agiiculture, Commissioner of Forests, the Hon. J. McKenzie ; Commissioner of Stamp
Duties and Member representing the Native Races, the Hon. J. Carroll ; Minister ot
Education, Immigration and in charge of Hospitals and Charities, the Hon. VV. C.
Walker ; Minister of Public Works, Marine and Printing Office, the Hon. W. HalU
Jones ; Minister for Justice and Defence, the Hon. J. Thompson

QuEESSLAXD. — Queensland comprises the whole north-eastern portion of the Austra-
lian continent, including the adjacent islands in the Pacific Ocean and in the Gulf of
Carpentaria. The territorj' is of an estimated area of 668,497 English square miles,
with a seaboard of 2,550 miles. Population, 31st Dec, 1899, 482,400; public revenue.
1898-9, £4,174,086. Executive Government at the passing of the Commonw^ealth of
Australia Constitution : — Governor and Commander-in-Chief, the Right Hon. Baron
Lamington, K.C.M.G. ; Lieutenant-Governor, Sir Samuel W. Griffith, G.C.M.G., C.J.
Administration — Premier, Treasurer, and Secretary for Mines, the Hon. Robert Philp ;
Chief Secretary, the Hon. J. R. Dickson, C.M.G.; Home Secretary, the Hon. J. F. G.
Foxton ; Attorney-General, the Hon. Arthur Rutledge, Q.C. ; Secretary for Public
Lands, the Hon, W. B. H. O'Connell ; Secretary for Railways and Public Works, the
Hon. John Murray ; Secretary for Agriculture, the Hon. J. V. Chataway ; Postmaster-
General and Secretary for Public Instruction, the Hon. J. G. Drake ; Ministers without
portfolios, the Hon. G. W. Gray and D. H. Dairy mple.

Tasmania. — The area of the colony is estimated at 26,215 square miles, of which
24,330 square miles form the area of Tasmania proper, the rest constituting that of a
number of small islands, in two main groups, the north-east and north-west. Popu-
lation, 31st Dec, 1899, 182,300 ; public revenue, 1898-9, £908,223. Executive Govern-
ment at the passing of the Commonwealth of Australia Constitution Act : — Captain-
General and Governor-in- Chief, Viscount Gormanston, K.C.M.G. Administration —
Premier and Attorney-General, the Hon. N. E. Lewis ; Chief Secretary, the Hon. G. T.
Collins ; TreasureSj the Hon. B. S. Bird ; Minister of Lands, Works, and Mines, the
Hon. E. Mulcahy ; without portfolio, the Hon. F. W. Piesse.

Victoria. — Victoria is bounded on the north and north-east by a straight line
drawn from Cape Howe to the nearest soui'ce of the river Murray, thence by the course
of that river to the eastern boundary of the colony of South Australia, thence by that
boundary to the Southern Ocean. It has an area of 87,885 square miles. Population, 31st
Dec, 1899, 1,162,900; public revenue, 1898-9, £7,396,943. Executive Government at
the passing of the Commonwealth of Australia Constitution Act ;— Lieutenant-Governor,
the Hon, Sir .lohn Madden, K.C.M.G., C.J. Administration — Premier and Chief
Secretary, the Hon. Allan McLean ; Treasurer, the Hon. Wm. Shiels ; Attorney-
General, the Hon. Wm. Hill Ir\ane ; Solicitor-General, the Hon. John M. Davies ;
Minister of Mines, Water Supply, and Railways, the Hon. Alfred R. Outtrim ;
Minister of Public Works and Agriculture, the Hon, Geo. Graham ; Minister of Lands,
the Hon. James McCoU ; Minister of Education and Trade and Customs, the Hon. Dr.
Charles Carty Salmon ; Postmaster-General, the Hon. Wm. A. Watt ; Minister of
Defence and Public Health, the Hon. Donald Melville ; without portfolio, the Hon.
James Balfour.

South Australia.- The original boundaries of the province, according to the statute
of 4 and 5 Will. IV. c 95, were fixed between 132" and 141° E. long, as its eastern and
western boundaries, the 26° of S. lat. as its northern limit and bounded on the south by
the Southern Ocean. The boundaries were subsequently extended ; under the statute of
24 and 25 Vic. c. 44, a strip of land between 132° and 129° K. long, was added ou
October 10th, 1861. (Statesman's Year Book, 1899 ; Webb's Imperial Law, p, 99.) The
total area of South Australia proper is 380,070 square miles ; and including the Northern
Territory it is calculated to amount to 903,690 square miles. Population, 31st Dec,
1899, 370,700 ; public revenue, 189S-9, £2,731,208. Executive Government at the pasB-

^ 46.] COVERING CLAUSES. 375

iag of the Commonwealth of Australia Constitution Act : — Governor and Commander-in-
Chief, the Right Hon. Baron Tennyson, K.C. M.G. ; Lieutenant-Governor, the Right
Hon. Sir S. J. Way, Bart , J.C. Administration — Premier and Treasurer, the Hon. F.
W. Holder ; Chief Secretary, the Hon. G. Jenkins ; Attorney-General, the Hon. John
H. Gordon ; Commissioner of Lands and Minister for Mines, the Hon. L. O'Loughlin];
Commissioner of Public Works, the Hon. R. W. Foster ; Minister of Education and
Agriculture, the Hon. E. L. Batchelor.

XoRTHERX Territory. —The Xorthem Territory of South Australia, formerly
known as Alexandra Land, embraces an immense tract of country, and contains an area
of about 523,620 square miles. It is bounded on the north by the Indian Ocean — that
portion of it known as the Arafura Sea ; on the south by the 26th parallel of south
latitude, which is the line of demarcation between it and South Australia proper ; on
the east by the 13Sth meridian of east longitude, which di\-ides it from Queensland ; and
on the west by the r29th meridian of east longitude, which separates it from Western
Australia. It also comprises all the bays, gulfs, and adjacent islands on its northern
coasts. The eastern boundary line of this territory cuts the coast near the mouth of the
Wentworth river, on the south-east coast of the Gulf of Carpentaria, and the western
boundary near Cape Domett, in Cambridge Gulf. (Aust. Hand Book [1900], p. 390.)

The Home Government originally proposed to annex this territory to Queensland ;
but, in consequence of the favourable report given by Mr. John M'Douall Stuart (the
explorer) of the countrj- on the northern coast, the South Australian Government
petitioned the Home Government for its annexation to South Australia. This request was
granted, and by royal letters patent of 6th July, 1863, a " supplementary commission '
was issued extending the boundaries of that colony accordingly. The letters patent
recited the provision of the Act (5 and 6 Vic. c. 76, sec. 51), empowering the Queen by
letters patent to separate from New South Wales any part of the territory of that colony
lying to the northward of 26° south latitude, and to erect the same into a separate
colony or colonies (see p. 72, supra). They also recited the Act (24 and 25 Vic. c. 44,
sec. 2), which empowered the Queen to annex to any Australian colony any territories
which in the exercise of the above powers might have been erected into a separate
colony ; with a proviso that it should be lawful for the Queen in such letters patent to
reserve the power of revoking or altering the same, and also on such revocation to
exercise the power again. The letters patent then proceeded to declare that " We have
thought fit, in pursuance of the powers so vested in Us, and of all other powers and
authorities to Us in that behalf belonging, to annex, and we do hereby aimex to Our
said colony of South Australia, until We think fit to make other disposition thereof,"
so much of the colony of New South Wales as lies to the northward of 26° south latitude,
and between 129^ and 138" east longitude, together with the bays, gulfs, and adjacent
islands; "and we do hereby reserve to Us, Our heirs and successors, full power and
authority from time to time to revoke, alter, or amend these Our letters patent, as to
Us or them shall seem fit." (Pari. Papers [S.A.]. 1896, Vol. ii.. No. 113.)

Westers Australia. —As defined by Roj-al Commission, Western Australia
includes all that portion of the continent situated to the westward of 129° E. longitude.
The greatest length of this territory from Cape Londonderry in the north to Peak Head
(south of King George's Sound) in the south is 1,450 miles, and its breadth from Steep
Point near Dirk Hartog's Island, on the west, to the 129th meridian, on the east, about
S50 miles. According to the latest computation, the total estimated area of the colony
is 975,920 English square miles, including islands. PopiUation 31st December, 1893 —
168,129; public revenue, 1898-9 — £2,478,811. Executive Government at the passing of
the Commonwealth of Australia Constitution Act : — Governor and Commander-in-Chief,
Lieutenant-Colonel Sir Gerard Smith, K.C. M.G. Administration : Premier and Colonial
Treasurer— The Right Hon. Sir John Forrest. P.C, K.C.M.G. ; Commissioner of Rail-
ways and Director of Public Works— the Hon. F. H. Piesse ; Minister for Crown Lands
— the Hon. G. ThrosseU ; Minister of Mines — the Hon. H. B. Lefroj- ; Attorney-

376 COMMENTARIES ON THE CONSTITUTION. [Cl. 7.

General — the Hon. R. W. Pennefather ; Colonial Secretary — the Hon. G. Randell ;
without portfolio — the Hon. S. Bnrt, Q.C.

§ 47. " Colonies or Territories."

The only " States " at the outset will be the " Original States," namely, New South
Wales, Victoria, Queensland, South Australia, Western Australia, and Tasmania. But
under sec. 121 the Federal Parliament maj-^ admit or establish new States ; and any
colonies or territories which are so established as States will thenceforth be included in
the definition. Apart from New Zealand and the northern Territory of South Australia,
new States are hardly likely to be formed except by the sub-division of existing States.

Territories. — A description may here be given of the chief Australasian territories
which are likely, in time, to become territories of the Commonwealth — though their size
or political condition, or both, render it unlikely that any of them will be admitted ta
the rank of States.

Norfolk Island. — This island, about five miles in length, and three in breadth,
situated 900 miles from the Australian main land, and 1,100 miles from Sydney, was
discovered by Captain Cook, on 9th October, 1774. It is said to be one of the most
beautiful spots in the Pacific. The inhabitants are governed, since 14th November,
1896, by a Resident Magistrate, and an elective Council of 12 members ; they are subject
to the instructions of the Governor of New South Wales, who is expected to \nsit it
once during his term of office. Area, 10 square miles ; population about 750,

Lord Howe Island. — This picturesque island, seven miles in length, and about one
and half miles in breadth, situated about 400 miles from Sydney, was discovered by
Lieutenant Ball, on 14th February, 1788, whilst on a voyage in H.M.S. Supply from
Port Jackson to found a Settlement at Norfolk Island. It is administered by the
Government of New South Wales, and since 1882, it has been under the jurisdiction of a
visiting Magistrate from Sydnej'. Population, 55.

F1.JI. — The Fiji Islands were ceded to the Queen by the Chiefs and people thereof,
and the British flag was hoisted on 10th October, 1874. Rotumah was annexed in
December, 1880. The islands are ruled by a Governor, assisted by an Executive and a
Legislative Council. There are about 80 inhabited islands in the group, containing a
total area, including Rotumah, of about 8,000 square miles, and having a population of
121,180; of whom 99,773 are Fijians, and the rest Indians, Polynesians, Rotumans,
and Europeans.

New Guinea.— By letters patent, dated 8th June, 1888, British New Guinea was
erected into a separate possession, as part of the Queen's dominions. Its area is calculated
to include about 86,0C0 square miles. The territory is at present governed by a local
administrator, assisted by an Executive Council ; the sum of £15,000 per year being
guaranteed by the colonies of Queensland, New South Wales, and Victoria towards the
expenses of governing the territory.

Repeal of Federal Council Act. (48 and 49 Vic. c. 60.)

7. The Federal Council of Australasia Act, 1885, is
hereby repealed, but so as not to affect any laws passed by
the Federal Council of Australasia*^ and in force at the
establishment of the Commonwealth.

Any such law may be repealed as to any State by the
Parliament of the Commonwealth, or as to any colony not
being a State by the Parliament thereof.

§48]

COVERING CLAUSES. 377

Historical Note. — Clause 6 of the Commonwealth Bill of 1891 was in almost
identical words, and was adopted by the convention of 1897-8 without debate. At the
Melbourne session, verbal amendments were made before the first report and after the
fourth report.

§ 48. " Laws Passed by the Federal Council."

The following Acts have been passed by the Federal Council, viz : —

(1.) 49 Vic. No. 1. An Act for shortening the language used in Acts of the
Federal Council of Australasia. Cited as " The Federal Council Interpretation Act,
1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 396.)

(2.) 49 Vic. Xo. 2. An Act to facilitate the proof throughout the Federation of
Acts of the Federal Council and of the Acts of the Parliaments of the Australasian
Colonies, and of .Judicial and Official Documents and of the Signattires of certain Public
Offic-ers. Cited as "The Federal Council Evidence Act, 1886." (Vic. Gov. Gaz., 19
Feb., 1886. p. 397.)

(3.) 49 Vic. No. 3. An Act to authorize the service of Civil Process out of the
jurisdiction of the colony in which it is issued. Cited as "The Australasian Civil
Process Act, 1886." (Vic. Gov. Gaz., 19 Feb., 1886, p. 397.)

(4.) 49 Vic. No. 4. An Act to make provision for the enforcement within the
Federation of judgments of the Supreme Court of the Colonies of the Federation. Cited
as "The Australasian Judgments Act, 1886." (Vic Gov, Gaz., 19 Feb., 1886, p, 398.)

(5.) 51 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries
in Australasian waters adjacent to the colony of Queensland. Cited as "The Queensland
Pearl Shell and Beche de mer Fisheries (exti-a-territorial) Act, 1888." Reserved for the
Royal assent 20 Jan., 1888, and proclaimed 19 July, 1888. (Vic. Gov. Gaz., 17 Aug.,
1888, p. 2576 ; 31 Aug., 1888, p. 2706 ; and 7 Sept., 1888, p. 2753.)

(6.) 52 Vic. No. 1. An Act to regulate the Pearl Shell and Beche de mer Fisheries
in Australasian waters adjacent to the colony of Western Australia. Cited as "The
Western Australian Pearl Shell and Beche de mer Fisheries (exti-a-territorial) Act of
1889." Reserved for the Royal assent 4 Feb. 1889, and proclaimed 18 Jan., 1890. (Vic,
Gov. Gaz., 31 Jan., 1890, p. 332.)

(7. ) 54 Vic. No. 1 . An Act to facilitate the recognition in other colonies of Orders
and Declarations of the Supreme Court of any colony in matters of Lunacy. Cited as
" The Australasian Orders in Lunacy Act, 1891." (Vic. Gov. Gaz., 17 Feb., 1891, p.
903.)

(7.) 56 Vic. No. 1. An Act to make provision for the Discipline and Government
of the Garrisons established at King George's Sound and Thursday Island at the joint
expense of the Australian Colonies or some of them (3 Feb., 1893). Cited as "The
Federal Garrisons Act, 189.3." (Published in the Vic. Gov. Gaz., 3 March, 1893, p.
1131.)

(8.) 60 Vic. No. 1. An Act to provide for the naturalization within the Australian
Colonies, or some of them, of persons of European descent naturalized in any of such
colonies (1 Feb., 1897). Cited as "The Australasian Naturalization Act, 1897." (Vic.
Gov. Gaz., 19 March, 1897, pp. 1121-2.)

(9.) 60 Vic. No. 2. An Act to make provisions for the enforcement in certain cases
within the Australasian Colonies, or some of them, of Orders of the Supreme Courts of
such Colonies for the production of Testamentary Instruments (1 Feb., 1897). Cited as
" The Australasian Testamentary Process Act, 1897." (Vic. Gov. Gaz., 19 March, 1897,
p. 1123.)

The colonies represented in the Federal Council were : — Victoria, Queensland,
Western Australia, Tasmania, Fiji ; and also, for a period of two years (from 10th
December, 1888, to 10th December, 1890), South Australia. (See Historical Introduc-
tion, p. 114, sujyra.)

378 COMMENTARIES ON THE CONSTITUTION. [Cl.

Application of Colonial Boundaries Act. (58 and 59 Vic. c. 34.)

8. After the passing of this Act the Colonial Boundaries
Act, 1895*^, shall not apply to any colony which becomes a
State of the Commonwealth ; but the Commonwealth shall
be taken to be a self-governing colony for the purposes of that
Act.

Historical Notk. — At the Melbourne Session of the Convention, after the first
report, this clause was proposed by Mr. O'Connor in precisely the form in which it now
stands. (Conv. Ueb., Melb., pp. 1,826-7.)

§ 49. "Colonial Boundaries Act."

This is an Act to pi-ovide, in certain cases, for the alteration of the boundaries of
self-governing colonies. It provides as follows : —

(i.) Where the boundaries of a colony have, either before or after the passing

of this Act, been altered by Her Majesty the Queen by Order-in-Council

or letters-patent, the boundaries as so altered shall be, and be deemed to

have been from the date of the alteration, the boundaries of the colony.

(ii.) Provided that the consent of a self-governing colony shall be required for

the alteration of the boundaries thereof,
(iii.) In this Act " self-governing colony " means any of the colonies specified in
the schedule to this Act.

SCHEDULE.

Self-Govkrning Colonies.

Canada. South Australia. New Zealand.

Newfoundland. Queensland. Cape of Good Hope.

New South Wales. Western Australia. Natal.

Victoria. Tasmania.

The efiect of this clause is to make the Colonial Boundaries Act apply, not to the
separate States of the Commonwealth, but to the Commonwealth as a whole — just as it
applies to the Dominion of Canada as a whole. In other words, the colonies which
become States are in effect struck out of the schedule, and the Commonwealth of
Australia is substituted.

The purpose of the Act is to confer general statutory authority on the Queen to
alter the boundaries of a self-governing colony, with the consent of that colony, without
the necessity of resorting to Imperial legislation in every case.

The reason for repealing the Act, so far as it applied to colonies which become States
of the Commonwealth, is that the Constitution itself makes provision for the alteration
of the boundaries of States. Sec. 123 provides that the Parliament of the Common-
wealth maj^, with the consent of the Parliament of a State, and the approval of a
majority of voters in the State, alter the limits of the State.

Now, therefore, the Colonial Boundaries Act only applies to the alteration of the
boundaries of the Commonwealth. Apart altogether from that Act, the Conmionwealth
has power under section 121 to alter the boundaries of the Commonwealth by admitting
new States ; and sec. 122 contemplates, and perhaps impliedly gives, the power to
accept or acquire new territories.

The first question is — What constitutes the consent of the Commonwealth within
the meaning of the Colonial Boundaries Act ? The consent of a colony is ordinarily
given by its Legislature ; and the consent here intended is evidently the consent of the
Parliament of the Commonwealth. It may indeed be contended that by the Common-
wealth, which is described in the Colonial Bonndaries Act, as "a self-governing colony,"
is meant the community ; and that the consent of the community caimot be given either

§ 49.]

COVERING CLAUSES. 379

bj' the Parliament of the Commonwealth or by the Parliaments of the States, or both,
but onh- by the communitj' in g«cwt sovereign organization — i.e., by the amending power.
This, however, was certainly not the intention of the framers of the Colonial Boundaries
Act, or of the Fe<leral Constitution ; whatever may be the teachings of political science
as to the seat of ^Mo^^isovereignty in the Commonwealth. The consent of Canada under
the Colonial Boundaries Act is clearly to be given by the Parliament of Canada ; and
the consent of the Commonwealth means the consent of the Parliament of the Common-
wealth. That is to say, the word " Commonwealth " is used here as in other provisions
as referring to the central governing organs of the Commonwealth. (See notes § 17 and
§ 4.3 " Commonwealth," nupra.)

Where the alteration of the boundaries of the Commonwealth involves merely
territory which is not part of any State, the clause presents no further difficulty ; but
where it involves the alteration of the limits of a State, it becomes a question whether
in addition to the consent of the Parliament of the Commonwealth, the consent of the
Parliament and electors of the State is also necessary. The Colonial Boundaries Act, as
amended by the Constitution Act, provides that Orders in Council, or letters patent,
altering the boundaries of the Commonwealth, shall be valid if made with the consent
of the Commonwealth ; sec. 123 of the Constitution pro\-ides that the Parliament of the
Commonwealth may, ^^ith the consent of the Parliament and a majority of the electors
of a State, alter the limits of the State. The latter section certainly implies that the
Parliament of the Commonwealth may not alter the limits of a State without such
consent. The question is whether, in consenting to an alteration of boundaries by the
Queen, the Parliament can be said to alter the limits of a State. Under sec. 123, the
Parliament of the Commonwealth makes the alteration ; under the Colonial Boundaries
Act, the Queen makes the alteration, and the Parliament of the Commonwealth merely
consents. It is certainly open to argument that the consent of the Commonwealth, in
such a case, is in effect an alteration of the limits of a State by the Commonwealth, and
therefore that the Parliament of the Commonwealth cannot lawfully give such consent
without the consent of the Parliament of the State, and the approval of a majority of

the electors.

Constitution.

9. The Constitution^ of the Commonwealth shall be as
follows : —

The Constitution.

This Constitution is divided as follows : —

Chapter I. — The Parliament :

Part I. — General :

Part II.— The Senate :
Part III. — The House of Representatives :
Part IV. — Both Houses of the Parliament :
Part V. — Powers of the Parliament :

Chapter II. — The Executive Government:

Chapter III. — The Judicature :

Chapter IV. — Finance and Trade :

Chapter V.— The States :

Chapter VI. — New States :

Chapter VII. — Miscellaneous:

Chapter VIII. — Alteration of the Constitution :

The Schedule.

380 • COMMENTARIES ON THE CONSTITUTION. [Cl. 9.

Historical Note. — The division of the Constitution into Chapters and Parts is pre-
cisely the same as in the Commonwealth Bill of 1891. At the Adelaide Session, 1897^
the wording of the Bill of 1891 was followed exactly. At the Melbourne Session, after
the fourth report, a few verbal changes were made — notably the substitution of
" Alteration " for " Amendment ;" but the mode of division remained unchanged.

In the Bill as introduced into the Imperial Parliament, the clause was altered to
read : — " Subject to the foregoing provisions, the Constitution of the Commonwealth
shall be as set forth in the schedule to this Act." Tlie Constitution was appended as a
schedule. In Committee, however, the clause was restored to its original shape. (See
Hist. Intro., pp. 242, 248, sii}yra.)

§ 50. "The Constitution."

Organization of the Commonwealth within the Constitution. — Up to this
stage the Imperial Act has dealt with the organization of the Commonwealth outside of
and without reference to the Constitution. Clause 9 unfolds the Constitution, which, a&
we have already seen, deals with the internal organization of the Commonwealth, distri-
butes power, provides for the government of the Commonwealth, guarantees the cor-
porate rights of the States, parts of the Commonwealth, and the personal rights and
liberties of individuals resident within the Commonwealth ; and contains provisions for
the accomplishment of changes to meet the possible requirements and potentialities of
the future. We are now able to appreciate the distinction, previously emphasized,
between the Commonwealth and the Constitution. Back of the Federal and State
governments lies the amending power — the gwa-si-sovereign organization of the Common-
wealth within the Constitution ; back of the amending power and the Constitution lies
the sovereign British Parliament, which ordained the Constitution. (Burgess, Political
Sc. , I., p. 57.) The Constitution embodies the terms of the deed of political partnership
between the people and the States, by whose union the Commonwealth is composed.
This deed contains a complete scheme for the regulation of the legal rights and duties of
the people, considered both as members of the united community, and as members of
the provincial communities in which they respectively reside ; it contains a full
delimitation and distribution of the governing powers of the Commonwealth, not only
creating a central government, but expressly confirming the Constitutions, powers and
laws of the State governments so far as not inconsistent with grants of powers to the
central government. This is a feature wliich presents a marked contrast to the Consti-
tution of the United States, referring to which Bryce says : —

" It must, however, be remembered that the Constitution does not pi'ofess to be a
complete scheme of government, creating organs for the discharge of all the functions
and duties which a civilized community undertakes. It pre-supposes the State govern-
ments. It assumes their existence, their wide and constant activity. It is a scheme
designed to provide for the discharge of such and so many functions of government as
the States do not already possess and discharge." (Bryce's American Comni., vol. I.,
p. 29.)

By implication, no doubt, the State Constitutions of the United States must be read
along with and into the Federal Constitution in order to make it cover the whole field of
civil government. But no such implication or inference is necessary in order to show
that the Constitution of the Commonwealth is not a fragmentary statute dealing in a
partial manner with the political government of the Union. It does not merely pre-
suppose the State governments. It expressly recognizes and confirms their existence
(sees. 106-7-8). It is a comprehensive and a complete sj'stem of government, partition-
ing the totality of (/itasi-sovereign powers delegated to the Commonwealth, as well as
providing for a future development and expansion of those powers. This is suggested by
a general conspectus of the Constitution now under review, and it is confirmed by an
analysis of the Constitution in detail. A logical classification of the various powers
exercisable under the Constitution would resolve them into three parts —

^50.]

COVERING CLAUSES. 381

(1.) General authority vested in the Federal Parliament, the Federal Executive,

and the Federal Judiciary, with limitations and qualifications.
(2.) Residuary authority of the States as defined in their respective Consti-
tutions, confirmed and continued by sections 106, 107, and 108 of the
supreme Constitution, and exercised by them through their respective
legislative, executive, and judiciary organization, with limitations and
qualifications.
(3.) Power to amend the Constitution of the Commonwealth, enlarging or
diminishing the area of federal authority and jurisdiction ; or enlarging
or diminishing the area of State authority and jurisdiction.
TBrPARTTTE Divisiox OF GOVERNMENT. — It will be noticed that the authority and
jurisdiction assigned to the central or general government is distributed among three
departments — (1) The Legislature; (2) the Executive; (3) the Judiciary. A further
tripartite division of the legislative power itself is seen in the threefold mode of legisla-
tion—the legislative power being vested jointly in three bodies — (1) The Queen ; (2) the
Senate ; and (3) the House of Representatives. (See Bancroft on the Constitution of
the United States, i7i/>-«. )

The same division and co-ordination is observed in the Constitutions of the States.
It is a fundamental principle in the British and American political systems The Con-
stitution of the Commonwealth is a compound, embodying the Ijest features of both those
time-honoured models, and eliminating those considered objectionable, according to the
views and judgments of its framers. This tripartite principle of division and distribution
of power has been followed in the Constitution of the Commonwealth ; though, of
course, there are differences in the relative powers of the several organs.

" In every form of government (iroAtrcia) there are three departments (uopta),
and in every form the \»ise law-giver must consider, what, in respect to each of these, is
for its interest. If all is well with these, all umst needs be well with it, and the differ-
ences between forms of government are differences in respect to these. Of these three,
one is the part which deliberates (to Bovkei^uevov) about public affairs ; the second is
that which has to do with the ottices . . . ; and the third is the judicial part
(to BLKatoi')." (Aristotle, Politics, Book \'i.. c. xiv. ; cited Fosters Coram , I., 299.)

" The tripartite division of government into legislative, executive, and judicial,
enforced in theorj- by the illustrious Montesquieu, and practised in the home govern-
ment of every one of the American States, became a part of the Constitution of the
United States, which derived their mode of instituting it from their own happy
experience. It was established by the federal convention with rigid consistencj- that
went beyond the example of Britain, where one branch of the legislature stiU remains a
court oi appeal. Each one of the three departments proceeded from the people, and
each is endowed with all the authority needed for its just activity. The president may
recommend or dissuade from enactments, and has a limited veto on them ; but whatever
becomes a law he must execute. The power of the legislature to enact is likewise uncon-
trolled, except by the paramount law of the Constitution. The judiciary passes upon
every case that may be presented, and its decision on the case is definitive ; but without
further authority over the executive or the legislature, for the convention had wisely
refused to make the judges a council to either of them. Tripartite division takes place
not only in the threefold powers of government ; it is established as the mode of legislation.
There too, three powers proceeding from the people, must c-oncur, except in cases pro-
vided for, before an act of legislation can take place. This tripartite division in the
power of legislation — so at the time wrote Madison, so thought all the great builders
of the constitution, so asserted John Adams with vehemence and sound reasoning— -is
absolute Ij- essential to the success of a federal repu])lic ; for if all legislative powei-s are
vested in one man or in one assembly, there is despotism ; if in two branches, there is a
restless antagonism between the two ; if they are distributed among three, it will be
hard to unite two of them in a fatal strife with the third. But the executive, and
each of the two chambers, must be so chosen as to have a character and strength and
popular support of its own. The (ik)vemment of the United States is thoroughly a
government of the people. By the English aristocratic revolution of 1688. made after the
failure of the popular attempt at reform, the majority of the House of Commons was in
substance composed of nominees of the House of Lords, so that no ministry could prevail
in it except by the power of that House ; and as the prime minister and cabinet

382 COMMENTARIES ON THE CONSTITUTION. [Cl. 9.

depended on the majority in the House of Commons, the House of Lords directly con-
trolled the government not only in its own branch, but in the Commons, and through
the Commons in the nomination of the ministry. All these branches of the government
were in harmony, for all three branches represented the aristocracy. In the United
States, on the other hand, all the branches of power — president, senators, and repi'esen-
tatives — proceed directly or indirectly from the people. The government of the United
States is a government by the people, for the people." (Bancroft, History of the Con-
stitution of the United States, vol. ii., p. 327-8-9, 6th ed., 1889.)

" It is believed to be one of .the chief merits of the American system of written con-
stitutional law, that all the powers entrusted to the government, whether State or
national, are divided into three grand departments — the executive, the legislative, and
the judicial. That the function appropriate to each of these branches of government
shall be vested in a separate body of public servants, and that the perfection of the
system requires that the lines which separate and divide these departments shall be
broadly and clearly defined. It is also essential to the successful working of this system
that the persons entrusted with power in any one of these branches shall not be per-
mitted to encroach upon the powers confided to the others, but that each shall by the
law of its creation be limited to the exercise of the powers appropriate to its own
department and no other. To these general propositions there are in the Constitution of
the United States certain important exceptions. These are then stated substantially as
set forth in the text." (Per Mr. Justice Miller, in Kilbourn v. Thompson, 103 U.S.,
168 ; Foster's Comm., I., p. 296.)

" One branch of the government cannot encroach on the domain of another Avithout
danger." (Per Chief Justice Waite, in the Sinking Fund Cases, 99 U.S., 700, 718 ;.
quoted with approval by Mr. Justice Harlan, in Clough v. Curtis, 134 U.S., 361 ;
Foster, I., 297.)

" The maintenance of the system of checks and balances, characteristic of republican
constitutions, requires the co-ordinate departments of government, whether federal or
State, to refrain from any infringement of the independence of each other, and the
possession of property by the judicial department cannot be arbitrarily encroached upon,
save in violation of this fundamental principle." (Per Chief Justice Fuller, in re Tyler,
149 U.S., 164 ; to the same etlect in Swan, 150 U.S., 637 ; Foster, 1., 297.)

" The classification of governmental powers into three is as old as Aristotle, but the
importance of their separation was first explained by Montesquieu. His great work
was accepted as infallible by the leaders of the American people tliroughout the Revo-
lution and at the time of the Federal Convention. More than half the first State con-
stitutions contained declarations of the importance of the distinction. The rest
recognized it in their structure. The first constitution proposed for Massachusetts was
rejected partly for the reason that the powers were not kept sufficiently apart."
(Foster, I. , 299. )

" Where the government lays down general rules for the guidance of conduct, it is
exercising its legislative functions. Where it is carrying those rules into effect, it is
exercising its executive powers. And where it is punisliing or remedying the breach of
them, it is fulfilling judicial duties. It by no means follows that the exercise of these
different classes of functions is always entrusted to different hands. But, nevertheless,
the distinctions between the functions themselves usually exist, both in central and in
local matters." (Jenks, Government of Victoria, p. 228.)

The Constitution of the Commonwealth, in accordance with these time-honoured
precedents and principles, draws a clear-cut distinction between the law-making and the
law-enforcing agencies ; the legislative power being vested in the Federal Parliament,
and tlie Executive power being vested in the Queen, and exercisable by the Governor-
General with the advice of a Federal Kxecutive Council. The two departments are
diffiereutiated as clearly as they can be by language. But out of the Executive Council
will spring a body whose name is not to be found in this Constitution ; whose name is
not legally known to the British Constitution ; a body which is " the connecting link,
the hyplien, the buckle," fastening the legislative to the executive part of the Fetleral
Government ; that ministerial committee of Parliament, nominally and theoretically
servants of the Crown, but in reality, though indirectly, appointed by the National
Chamber ; that committee who.se tenure of office depends upon its retention of the con-
fidence of the National Chamber and bj- and through whose agency a close union, if not
a complete fusion, is established between the executive and legislative powers— The
Cabinet. (Walter Bagehot, English Constitution, 2nd ed., pp. 10-11.) This .separation
in theory, but fusion in practice, of the legislative and executive functions, through tlic

§ 5l.[

THE PARLIAMENT. 383

agency of the Cabinet, may, to those who have not much considered it, seem a dry and
small matter, bat it is " the latent essence and efifectual secret of the English Consti-
tution." (Id., p. 16 ; see Note, § 271, " Executive Government.)

CHAPTER T.— THE PARLIAMENT^\
§ 51. " Parliament."

Origin. —This word, which, Bagehot says, is descriptive of the greatest inquiring,
discussing, and legislative machine the world has ever known, " the great engine of
popular instruction and political controversy," is derived from the Old English, Parle-
ment ; French, Parlement, Parltr, to speak ; Low Latin, Parliament um— a parleying, a
discussion, a conference ; hence a formal conference on public affairs ; an assembly of
representatives of a nation. (Webster's Intemat. Dictionary.) Freeflom of speech is
the essence of political representation, and without it a national council could not
exist.

" The word (which was at first applied to general assemblies of the States under
Louis VII. in France, alx)ut A.D. 1150) was not used in England until the reign of
Hen. III., and the first mention of it, in our statute law, is in the preamble to stat.
Westm. L, 3 Ed. I., A.D. 1272. When therefore it is said that Parliaments met before
that era, it is by a license of speech, considering every national assembly as a Parlia-
ment. See I. Comm., c. 2, p. 147, and the notes thereof." (Tomlins's British Law —
Title, Parliament.)

" In 21 Henry III. the King finds himself, in consequence of pressing money embar-
rassments, again compelled to make a solemn confirmation of the charter, in which once
more the clauses relating to the estates ai-e omitted. Shortly afterwards, as had
happened just one hundred years previously in France, the name ' parliamentum ' occurs
for the first time (Chron., Dunst., 1244; Matth., Paris, 1246), and, curiously enough,
Henry III. himself, in a wTit addressed to the Sheriff of Northampton, designates with
this term the assembly which originated the Magna Charta : ' Parliamentnm Runemede,
quod fuit inter Doin. Joh., Regem patrem noslrwm et barones mios Anglife.' (Rot Claus..
28 Hen . III. ) ITie name ' parliament ' now occurs more frequently, but does not sup-
plant the more indefinite terms coneUium, colloquium, &c." (Gneist, English Consti-
tution, p. 26L)

Precursors and Prototypes. — The Parliament of the Commonwealth is not an
original invention in any of its leading principles. It has its roots deep in the past. It
has been built on lines suggested by the best available models of its kind. Its framers
did not venture to indulge in any new fangled experiments ; they resisted every tempta-
tion to leave the beaten tract of precedent and experience, or to hanker after revolu-
tionary ideals. In constructing a legislative machine for the new community they
Ijelieved that they would most successfully perform their work by utilizing and ailapting
the materials to be found in the British, American, and Canadian Constitutions, with
such developments and improvements as might be justified by reason and expediency.
Of them and their work it may be said, as of the authors of the Constitution of the
United States and of their work —

" They had a profound disbelief in theory and knew better than to commit the folly
of breaking with the past. They were not seduced by the French fallacy that a new
system of Government could be ordered like a new suit of clothes. They would as soon
have thought of ordering a suit of Besh and skin. It is only on the roaring loom of time
that the stuff is woven for such vesture of their thought and experience as they were
meditating." (Mr. Lowell's Address on Democracy, Oct. 6, 1884.)

'' They had neither the rashness nor the capacity necessary for constructing a Con-
stitution, a priori. There is wonderfully little genuine inventiveness in the world, and
perhaps least of all has been shown in the sphere of political institutions. These men,
practical politicians who knew how infinitely difficult a business government is. desired
no bold experiments. They preferred, so far as circumstances permitted, to walk in the
old paths, to follow methods which experience had tested. Accordingly they started
from the system on which their own colonial governments, and afterwards their State
governments, had been conducted. This system bore a general resemblance to the British

384 COMMENTARIES ON THE CONSTITUTION. [Sec. 1.

Constitution ; and in so far it may with truth be said that the British Constitution
became a model for the new national government." (Bryce's American Comm., I., p .31.)

" There were other precursors of tlie federal government ; but the men who framed
it followed the lead of no theoretical writer of their own or preceding times. They har-
boured no desire of revolution, no craving after untried experiments. They wrought
from the elements which were at hand, and shaped them to meet the new exigencies
which had arisen. Tlie least possible reference was made by them to abstract doctrines ;
they moulded their design by a creative power of their own, but nothing was introduced
that did not already exist, or was not a natural development of a well-known principle.
The materials for building the American constitution were the gifts of the ages."
(Bancroft, Constitution of the U.S , II , p. .322.)

" In the constant remaking of the constitutions of Europe, South America, and even
Asia, Africa, and the Pacific islands, thej' should teach statesmen the pitfalls to avoid
and the paths to seek for the permanent security of both liberty and property. These
can be found only by an exhaustive study of the precedents which are landmarks of the
progress of the development of the Constitution of the United States, before as well as
since its adoption. They lead from the forests of Germany in the time of Tacitus, over
the island of Runnymede and the rock at Plymouth, beyond the apple-tree at Appomatox
into the old Senate Chamber at Washington, where Chief Justice Fuller sits with his
associates. They were the i-esult of conflicts with the sword, the pen, and the tongue, in
the field, the press, the senate, and the court. Amongst their builders are enrolled the
names of Simon de Montfort, Coke, Eliot, Hampden, Lilburne, Milton, Shaftesbury,
Locke, Wilkes, Jefferson, Hamilton, Marshall, Webster, and Lincoln. They present the
spectacle of the struggles of a people to obtain civil and religious liberty for themselves,
to extend them to those of another and despised race, and now to combine them with
the rights to ungoverned labour and complete security for private property." (Foster's
Coram., I., p. 2.)

"The form of government which prevails usually in primitive communities com-
prises a king or chief, a senate or gathering of elders or selectmen with whom he
consults, and a public assembly of all freemen with the right of suffrage, who decide
questions of importance, whether legislative, executive, or judicial, which are submitted
to them. This naturally arose from the councils of war, where the general, after
consulting the more experienced, took the sense of the whole body of warriors before an
important enterprise. Such a legislative assemblage of the whole people may still be
seen once a year on the Tynwald in the Isle of Man, in the Swiss cantons of Uri, Unter-
walden, Glarus, and Appenzell ; and more frequently in the town meetings in New
England and the Western States. In Switzerland the voters still follow the early
custom of attending armed. Of such a character were the fedei'al assemblies of the
Achaian, ^Etolian and Lycian Leagues, which each citizen had a right to attend,
although they voted by cities. They were manifestly impracticable when a government
was spread over an extensive territory, and to the lack of representative institutions
has been ascribed the loss of liberty in Greece and Rome. The senates of these con-
federations seem to have been composed of the present and former magistrates of the
different cities, who acted rather as ambassadors than legislators, and voted by cities,
each having an equal voice regardless of differences in wealth and population." (Id.,
p. 307-8.)

PART L— GENERAL.

Legislative Power.

1. The legislative power^^ of the Commonwealth shall be
vested in a Federal Parliaments^ which shall consist of the
Queen, a Senate, and a House of Representatives, and which
is hereinafter called ** The Parliament," or " The Parliament
of the Commonwealth."

United Statks.— All legfislative powers herein Kxanted shall be vested in a congress of the
United States, which shall consist of a senate and house of representatives. — Const.,
Art. I., sec. 1

Canada. — There shall be one Parliament for Canada, consistinj? of the Queen, an Upper House
styled the Senate, and the House of Commons. — B.N. A. Act, 1867, sec. 17.

Historical Note. —The clause in the Commonwealth Bill of 1891 was in substan-
tially the same foi-m. The clause as introduced at the Adelaide session, 1897,
substituted "States Assembly" for "Senate," but in Committee, on Mr. Walker's

§§ 52-53.]

THE PARLIAMENT. 385

motion, the name "Senate ' was restored. (Conv. Deb., Adel., pp. 480-2.) Mr.
Higgins proposed " National Assembly " in place of " House of Representatives," and
Mr. Symon proposed "House of Commons," but both suggestions were negatived.
(Conv. Deb., Adel., pp. 483, 628-9, 1189.) At the Sydne\- session, suggestions of the
Legislative Council of New South Wales, to omit " Federal " and to substitute " House
of Assembly" for "House of Representatives," were negatived. (Conv. Deb., Syd.
[1897], p. 253.) At the Melbourne session, after the fourth report, "power" was
substituted for " powers."

§ 52. " Legislative Power."

Legislation consists in the making of laws. It is contrasted with the Executive
power, whose office is to enforce the law, and with the Judicial power which deals with
the interpretation and application of the law in particular cases. " The legislative
power of the Commonwealth," referred to in this section, means the legislative power in
respect of matters limited and defined in the Constitution ; or, in the words of the
corresponding section of the United States Constitution, it means " the legislative power
herein granted." The legislative power so granted and vested in the Federal Parlia-*
ment does not exhaust the whole of the qtian -aovereiga authority of the Commonwealth.
A residuum of power continues vested in the States. Wliat is not granted to the i
federal government and what is not possessed by the States is reserved to the people of
the Commonwealth, and may at anj- time be brought into action by the provision for
amendment of the Constitution of the Commonwealth. By the process of amendment
further legislative power may be assigned to the Federal Parliament. That Parliament
will possess only such authority as is expre.ssly, or by necessary implication, conferred
upon it by the Constitution, as it stands, or by amendments which may hereafter be
incorporated into and become part of the Constitution.

The power of the Federal Parliament can only be found by searching through the
federal constitutional instrument. It has no scrap or particle of authority except such
as can be discovered or inferred somewhere within the document. A general enumera-
tion of the legislative powers of the Parliament is given in section 51 of the Constitution.
That, however, is not the onh' section in which legislative power is conferred. Numerous
sections may be referred to, in which law-making authority is embedded. Thus every
section beginning with the words or containing the words " until the parliament other-
wise provides" contains a grant of legislative power. Other sections not so plainly
identifiable are of the same effect ; such as sec. 27 — the Parliament may alter the
number of members of the House of Representatives ; Chapter III. — the Parliament
may create inferior federal courts and make other judiciary arrangements ; sec. 94 —
the Parliament may distribute the surplus revenue ; sec. 102— the Parliament may
forbid preferences and discriminations by States ; sec. 104 — the Parliament may take
over the public debts of the States ; Chapter VI. — The Parliament may admit new
i5tates, govern territories, and alter the limits of States ^^ ith the consent thereof.

§ 53. " Federal Parliament."

The Quees. — The Federal Parliament consists of the Queen, the Senate, and the
House of Representatives This is a statutory recognition of the Queen as a constituent
part of Parliament. In the British Constitution, and in most of the colonial constitu-
tions, the King or Queen for the time being has up to the present been recognized in
form and in theory, at least, as the principal legislator, if not the sole legislator, acting
by and with the consent of the parliamentary bodies. For over three hundred years
every Act of Parliament passed in England has begun with the well-known formula
" Be it enacted by the King's (Queen's) most excellent Majesty by and with the advice
and consent," &c. In the Australian Constitutional Acts, 5 and 6 Vic. c. 76, and 13 and
14 Vic. c. 59, the legislative power was vested in the Governor by and with the advice
aad consent of the Legislative Council, &c. In the subsequent constitutions of tlie self-

386 COMMENTARIES ON THE CONSTITUTION. [See. U

governing Australian colonies (1855) the power of legislation was conferred upon the
Queen " b}' and with the advice and consent of the said Council and Assembly."' In
the Constitution of the Commonwealth the old fiction that the occupant of the throne
was the principal legislator, as expressed in the above formula, has been disregarded ;
and the ancient enacting words will hereafter be replaced by words more in harmony
with the practice and reality of constitutional government. The Queen, instead of
being represented as the principal or sole legislator, is now plainly stated to be one of
the co-ordinate constituents of the Parliament. Consequently, federal legislation will
begin with such mandatory words as " Be it enacted by the Queen, the Senate, and the
House of Representatives," or, "Be it enacted by the Parliament of the Commonwealth
of Australia. "

It would not be correct to say that the Queen's share in the exercise of federal
legislative authority will be altogether formal and nominal. As regards matters of
purely Australian policy, no doubt the (lovernor- General, as representative of the Queen,
will be guided by the advice of the federal administration, as to whether he should, in
the Queen's name, assent to a proposed law passed by both Houses. But if he has reason
to believe that any proposed law comes within a class of bills to which, in his discretion
as the Queen's representative, he ought not to assent, he will reserve the proposed law
for the Queen's pleasure. A Bill so reserved will not have any force unless and until it
receives the Queen's assent within two years from the day on which it was presented to
the Governor-General (sec. 60). If the Governor-General assents to a proposed law in
the Queen's name, and the Imperial Government find that it is contrary to an Imperial
Act applicable to the Conunonwealth, or that it is in excess of the legislative power
possessed by the Federal Parliament, or that it is inconsistent with Her Majesty s treaty
obligations. Her Majesty may be advised to disallow such law, within one j'ear from the
Governor-General's assent. (Sees. 58 and 59.)

"The right of the Crown, as the supreme executive authoritj' of the empire, to
control all legislation which is enacted in the name of the Crown, in any part of the
Queen's dominion, is self-evident and unquestionable. In ihe mother country, the
personal and direct exercise of this prerogative has fallen into disuse. But eminent
statesmen, irrespective of party, and who represent the ideas of our own day, have
concurred in ass^erting that ' it is a fundamental error to suppose that the power of the
Crown to reject laws has consequently ceased to exist.' The authority of the Crown, as
a constituent part of the legislative body, still remains ; although, since the establish-
ment of parliamentary government, the prerogative has been constitutionally exercised
in a different way. But, in respect to the colonies, the royal veto upon legislation has
always been an active and not a dormant power. The reason of this is obvious. A colony
is but a part of the empire, occupying a subordinate position in the realm. No colonial
legislative body is competent to pass a law which is at variance with, or repugnant to,
any Imperial statute which extends in its operation to the particular colony. Neither
may a colonial legislature exceed the bounds of its assigned jurisdiction, or limited
powers. Should such an excess of authority be assumed, it becomes the duty of the
Crown to veto, or disallow, the illegal or unconstitutional enactment. This duty should
be fulfilled by the Crown, without reference to the conclusions arrived at in respect to
the legality of a particular enHctmeiit. by any legal tribunal. It would be no adequate
protection to the public, against erroneous and unlawful legislation on the part of a
colonial legislature, that a decision of a court of law had pronounced the same to be
ultra vires. An appeal might be taken against this decision, and the question carried to
a higher court. Pending its ultimate determination, the public interests might suffer.
Therefore, whenever it is clear to the advisers of the Crown that there has been an
unlawful exercise of power by a legislative body, it becomes their duty to recommend
that the royal prerogative should be invoked to annul the same." (Todd, 1st ed., pp.
125-6; 2nded., p. 155.)

TuE BiCAMRKAi. System. — The Senate and the House of Representatives compose
the two Chambers, according to what is generally described as the Bicameral System.
Apart from the philosophical and practical arguments in favour of-a two-chambered
legislature as against a single-chambered legislature, a political union on the federal plan
could not have been accomplished without the constitution of two Houses to represent
the composite elements of the union.

§53] THE PARLIAMENT. 387

"Theory and practice both proclaim that in a single House there is danger of a
l^islative despotism." (James Wilson, iu the American Federal Convention, 16th June,
1787.)

" We may say that modem constitutional law has settled firmly upon the bicameral
system in the legislature, with substantial parity of powers in the two Houses, except in
(fealing with the budget ; and that, in the control of the finances, a larger privilege is
regularly confided to the more popular House, i.e., the House least removed in its origin
from universal sulfi-age and direct election." (Burgess, Political Sc. , II., p. 106.)

" A single bod^- of men is a ways in danger of adopting hasty and one-sided views,
of accepting facts upon insufficient tests, of being satisfied with incomplete generaliza-
tions, and of mistaking happy phrases for sound principles. Two legislative bodies do
not always escape these crude and one-sided processes and results, but they are far more
likely to do so than is a single body. There is a sort of natural and healthy rivalry
between the two bodies, which causes each to subject the measures proceeding from the
other to a careful scrutiny, and a destructive criticism, even though the same party may
be in a majority in both. In this c-onflict of views between the two houses lies, in fact,
the onh- safe-guard against hast\- and ill-digested legislation when the same part}- is in
majority in both houses. A disagreement between the majorities in such a case is far
more likel}*, also, to lead to a deeper generalization of principle than when the struggle
is between the majority and the minority in each house ; since the majority in each
house will be much more inclined to look into the real merits of the question in the
former than in the latter instance, and will come to a decision far more independent of
partizanship. " (Burgess, Political Sc, II., pp. 106-7.)

" The necessity of a double, independent deliberation is thus the fundamental
principle of the bicameral system in the construction of the legislature. A legislature of
one chamber inclines too much to radicalism. One of three chambers or more would
incline too much to conservatism. The true mean between conservatism and progress,
and therefore the true interpretation of the common consciousness at each particular
moment, will be best secured by the legislature of two chambers. There is another
reason for this system, which, though less philosophic, is fulh' as practical. It is that
two chambers are necessary to preserve the balance of power between the legislative and
executive departments. The single-chamber legislature tends to subject the executive
to its will. It then introduces into the administration a confusion which degenerates
into anarchy. The necessity of the state then produces the military executive, who
subjects the legislature to himself. History so often presents these events in this
sequence, that we cannot refrain from connecting them as cause and eflect. The two
chambers, on the other hand, are a support in the first place to the executive power, and
therefore in the second place to the legislature. Bj' preventing legislative usurpation in
the beginning, the bicameral legislature avoids executive usurpation in the end." (Id.,
p. 107.)

Go vemor-G eneral.

2. A Governor-General^ appointed by the Queen shall
be Her Majesty's Representative in the Commonwealth, and
shall have and may e.\ercise in the Commonwealth during the
Queen's pleasure^^, but subject to this Constitution, such
powers and functions of the Queen^^ as Her Majesty may be
pleased to assign to him.

Historical Note.— Clause 2 Chap. I. of the Commonwealth Bill of 1891 was as
follows : —

" The Queen may. from time to time, appoint a Governor-General, who shall be Her
Majesty's representative in the Commonwealth, and who shall have and may exercise in
the Commonwealth during the Queen's pleasure, and subject to the provisions of this
Constitution, such powers and functions as the Queen may think fit to assign to him."

In Committee, Sir George Grej- proposed to make the clause read " There shall be a
Governor-General," with the intention of making the Governor- General elective. This,
after debate, was negatived bj' 35 votes to 3. Mr. Baker proposed to insert, after
" functions," the words " as are contained in Schedule B hereto, and such other powers
and functions as are not inconsistent therewith." He urged that the clause, as it stood

388 COMMENTARIES ON THE CONSTITUTION. [See. 2.

made the royal instructions part of the Constitutional law of the Commonwealth ; and
though he was not prepared at present to define the powers of the Governor-General, he
wished to affirm the principle that they should be contained in the Constitution. Mr.
Deakin and Dr. Cockburn thought that the best means of securing Mr. Baker's object
would be to state on the face of the Constitution that the Governor- General should
always act on the advice of his Ministers. Mr. Wrixon thought that if they were care-
ful, in the Executive Chapter, to thoroughly establish responsible Government, they
might let this clause go. Mr. Baker finally withdrew his amendment. (Con v. Deb.,
Syd. [1891] pp. 560-78.)

At the Adelaide session, 1897, the clause was introduced in the same words, except
that the powers exercisable by the Governor-General were defined to be "such powers
and functions of the Queen as Her Majestj' may think fit to assign to him." Mr. Glynn,
lest these words might revive dormant or dead prerogatives, moved to add " and capable
of being constitutionally exercised as part of the prerogative of the Crown " This was
negatived. (Conv. Deb., Adel., p. 629.)

At the Sydney session, Mr. Raid suggested that the clause be postponed. Mr.
Bai'ton agreed, saying " Some question may arise about the clause, which I do not like
to indicate at present ; but the Committee may take my word for it that it will be wise
to postpone it now." (Conv. Deb., Syd. [1897] pp. 253-4.) Subsequently, as a drafting
amendment, the clause was altered to read : — " A Governor-General appointed by the
Queen shall be," &c. After the fourth report, the words "the provisions of" were
omitted.

§ 54. "A Governor-General."

" The governor of a colony constitutes the only political link connecting the colony
with the mother country. So far as regards the internal administration of his govern-
ment, he is merely a constitutional sovereign acting through his advisers ; interfering
with their policy or their patronage, if at all, only as a friend and impartial councillor.
But whenever any question is agitated touching the interests of the mother country —
such, for instance, as the imposition of customs duties, or the public defence — his
functions as an independent oHicer are called at once into play. He must see that the
mother country receives no detriment. In this duty he cannot count on aid from his
advisers : tliey will consult the interests either of the colony or of their own popularity ;
he may often have to act in opposition to them, either by interposing his veto on enact-
ments or by referring those enactments for the decision of the home government. But
for these purposes the constitution furnishes him with no public oflicers to assist him in
council or execution, or to share his responsibility. The home government looks to him
alone." (Merivale's Lectures on Colonization, 1861, p 649.)

" Under responsible government a Governor becomes the image, in little, of a con-
stitutional king, introducing measures to the legislature, conducting the executive,
distributing patronage, in name only, while all these functions are in realitj' performed
by his councillors. And it is a common supposition that his office is consequently
become one of parade and sentiinent only. There cannot be a greater eri-or. The
functions of a colonial Governor under responsible govenunent are (occasionally) arduous
and difficult in the extreme. Even in the domestic politics of the colony, his influence
as a mediator between extreme parties and controller of extreme resolutions, as an
independent and dispassionate adviser, is far from inconsiderable, however cautiously
it may be exercised. But the really onerous part of his duty consists in watching that

Eortion of colonial politics which touches on the connection with the mother country,
[ere he has to reconcile, as well as he can. his double function as governor responsible to
the Crown, and as a constitutional head of an executive controlled by his advisers. He
has to watch and control, as best he ma}', those attempted infringements of the recognized
principles of the connection which carelessness or ignorance, or deliberate intention, or
mere love of popularity, may from time to time originate. And this duty, of peculiar
nicety, he must perform alone. . . His responsible ministers may (and probably will)
entertain views quite different from his own. And the temptation to surround himself
with a camarilla of special advisers, distinct from those ministers, is one which a
governor must carefully resist. It may, therefore, be readily inferred, that to execute
the office well requires no common abilities, and I must add that the occasion has called
forth these abilities." (Id., p. 666.)

§§ 54-56.1

THE PARLIAMENT. 389

" The office of Governor tends to become — in the most emphatic sense of the term —
the link which connects the mother c-ountry and the c-olonj', and his influence the means
by which harmony of action between the local and Imperial authorities is to be pre-
served. From his independent and impartial position, tlie opinion of a (iovemor must
needs have great weight in the colonial councils ; while he is free to constitute himself,
in an especial manner, the patron of those larger and higher interests — as of education,
and of moral and material progress in all its branches— which, unlike the contests of
party, unite, instead of dividing, the members of the bodv-politic." (Lord Elgin [1854],
cited Todd's Pari. Gov. in Col., p. 809, 2nd ed.)

"The Governor-General of Canada is the representative of the Queen, and the
highest authority in a dominion vast in extent, occupied by several millions of people,
comprising within itself various provinces recently brought together which can only knit
into a mature and lasting whole by wise and conciliatory administration. Nor is the
position insulated. The Governor-General is continually called upon to act on questions
aflFecting international relations with the United States. The person who discharges such
exalted functions ought to possess not only sound judgment and wide experience, but
also an established public reputation. He should be qualified both to exercise a moderat-
ing influence among the different provinces composing the union, and also to bear weight
in his relations with the British minister at Washington and with the authorities of the
great neighbouring republic." (Despatch by the Duke of Buckingham, Secretary of
8tate for the Colonies [1868], explaining the reasons of the Imperial Government for
advising the Queen to refuse assent to a bill passed by the Dominion Parliament to
reduce the salary of the Governor-General. Cited, Todd, p. 810, 2nd ed. )

§ 55. " During the Queen's Pleasure."

" Colonial Governors invariablj- hold office during the pleasure of the Crown ; but
their period of service in a colony is usually limited to six years from the assumption of
their duties therein ; although, at the discretion of the Crown, a Governor may be
re-appointed for a further term. The rule which limits the term of service of a
Governor to six years wa-s established principally for the purpose of en.suring in Governors
the utmost impartiality of conduct, by disconnecting them from fixed relations with the
colony over which they are appointed to preside. It was firet made applicable to all
British colonies by a circular despatch from Mr. Secretary Huskisson, issued in May,
1828, as follows : — ' It shall for the future be understood that, at the expiration of six
years, a Governor of a colony shall, as a matter of course, retire from his government,
unless there should be some special reasons for retaining him there ; and that the way
should thus be opened for the employment of others, who may have claims to the notice
of His Majesty's government.' " (Todd, 2nd ed., pp. 1-22-3.)

§ 56. "Powers and Functions of the Queen."

Section 2 of the Constitution is the same in suKstance as section 2 ch. I. of the
Commonwealth Bill of 1891. When it was first proposed in 1891, strong exception was
taken to it and other sections relating to the Governor-General on the ground that they
would confer extraordinary and enormous powers on the Governor-General, far in excess
of any authority previously conferred on anj' governor in these colonies. Subsequent
discussion showed that this contention was untenable.

During the progiess of Provincial Government in the Australian colonies, two
propositions have been suggested as explaining' the position and attributes of the
Governor of a Constitutional colony. One proposition has been that the Governor, as
the Representative of the Queen, is vested with authority defined and limited, partly
by the statute law establishing the Queen's Government in the colony, partly by the
letters patent constituting the offic-e of Governor, partly by the commission appointing
him to the office, and finally by the royal instnictions communicated to him by the
Secretary of State on behalf of Her Majesty. (Anson's Law and Custom of the
Constitution, vol. ii., p. 260.) The other view has l>een that the Governor of a colony,
m which the system known as Responsible Government exists, is a local constitutional
ruler, vested with authority defined or necessarily implied by the statute law establishing
the Queen's Government in the colony, and vested thereby with all the prerogatives of
the Crown reasonably necessary for the exercise of the proper functions of government ;
that the responsible ministers of such a colony possess, by virtue of that law, the power

390 COMMENTARIES ON THE CONSTITUTION. [Sec. 2.

to advise the representative of the Crown to do any act which it would be conipetem for
the legislature of the colonj' to sanction, and which ordinarily is, or under special
circumstances may become, reasonably necessary to its existence as a body constituted
by law, or for the proper exercise of the functions which it is intended to execute. (Per
Higinbotham, C.J., in Ah Toy v. Musgrove [1888], 14V.L.R. p 295-6.) A similar
contention was raised in the year in which that case was decided in Victoria by the
Government of Ontario, to the effect that the Lieutenant Governor of the Province was
entitled, virtute officii, to exercise all the prerogatives of the Crown incident to executive
authority in matters over which tlie provincial legislature had jurisdiction, in the same
manner as, and to the same extent that the Governor-General was entitled, virtute
officii, to exercise all prerogatives incident to executive authority in matters within tlie
jurisdiction of the Dominion Parliament. (Ontario Sess. Pap., 1888, No. ;i7, pp. 20-2.)
Tlie same doctrine was mooted in the Canadian courts on the hearing of the pardoning
power case. (Attorney-General of Canada t, Attorney-General of Ontario, 22 Ont. Rep.
222 ; 19 Ont. App. Rep. 31. Cited, A. H. F. Lefroy, Law Quarterly Review, July, 1899,
p. 283.)

In the construction of the powers and functions of the Governor-General of the
Commonwealth no such difficulties and ambiguities as were discussed in Ah Toy v.
Musgrove need arise. The principal and most important of his powers and functions,
legislative as well as executive, are expressly conferred on him by the terms of the Con-
stitution itself. Among these may be mentioned : the appointment of the times for
holding the Sessions of Parliament ; the prorogation of the Parliament ; the dissolution
of the House of Representatives (sec. 4) ; the dissolution of the Senate and of the House
of Representatives simultaneously (sec. 57) ; the convening of a joint sitting of the
members of the Senate and of the House of Representatives (sec. 57) ; the assent in the
name of the Queen to Bills passed by the Federal iHouses ; the withholding of the
Queen's assent to such Bills ; the reservation of Bills for the Queen's pleasure ; the
recommendation of amendments to be made in Bills (sec. 58) ; the exercise of the
Executive power of the Commonwealth (sec. 61) ; the appointment of political officers
to administer departments of state of the Commonwealth (sec. t)4) ; the command of the
naval and military forces of the Commonwealth (sec. 68) ; and generally, " in respect of
matters which, under this Constitution, pass to the Executive Government of the
Commonwealth, all powers and functions which at the establishment of the Common-
wealth are vested in the Governor of a colony" (sec. 70). These are powers and
functions vested in the Governor-General bj' statute, to be exercised by him in accord-
ance with the recognized principles of Responsible Government. The point to emphasize
is, that they are legislative and executive powers and functions conferred on the
Governor-General, not by Royal authority, but by statutory authority. (See Note § 60.)
The section now under consideration authorizes the Governor-General to exercise
such powers and functions as Her Majesty may be pleased to assign to him. These
powers and functions, however, must not be confusetl with the statutory authoritj' and
statutory duties to which reference has been made, relating to the Government of the
Commonwealth, expressly specified in and expressly conferred on the Governor-dleneral
by the Constitution. The powers and functions contemplated by this .section relate either
to matters subordinate and ancillary to the statutory authority and statutory duties
enumerated in the Constitution, or to matters connected with the Royal prerogative
(that body of powers, rights, and privileges, belonging to the Crown at common law, such
as the prerogative of mercy), or to authority vested in the Crown by Imperial statute law,
other than the law creating the Constitution of the Commonwealth. Some of these powers
and functions are of a formal character ; some of them are purely ceremonial ; others
import the exercise of sovereign authority in matters of Imperial interests. The nature
of some of the prerogative as well as formal and ceremonial power sreferrod to, may be
gathered from the extracts from letters patent and commissions relating to the oifice of
Governor, which will be found further on. Among examples of powers relating to

^56.]

THE PAELTAMENT. 391

matters of Imperial interests the following may be suggested : the observance of the
relations during peace, or in time of war, of foreign States to Great Britain, so far as
they may be aflFected by the indirect relations of such foreign States to the Common-
wealth ; the treaty rights and obligations of the Crown ; the treatment of belligerent and
neutral ships in the waters of the Commonwealth in times of war ; the control of Her
Majesty's Imperial naval and military forces within the limits of the Commonwealth.
Higinbotham, C.J., in Ah Toy i\ Musgrove [IS88], 14 V.L.R., 3S0.)

Resi'ONSIbility of Governors.— Reference may here be made to two leading cases
in which the powers, privileges, and immunities of colonial Governors were considered.
In Mostyn r. Fabrigas, [1775], 1 Cowp. 161-172, 2 W. Bl. 929, Lord Mansfield held
that a Governor of a colony is in the nature of a Viceroy. This dictum, however, has
not been generally acquiesced in, and it is now understood that Mostyn v. Fabrigas
simply decided that Governor Mostyn was liable to be sued in England for personal
wrongs done by him, whilst he was Governor of Minorca. In the case of Musgrave v.
Pulido [1879], 5 App. Cas. 102, Pulido, the charterer of a schooner, sued Sir Anthony
Musgrave, the Governor of Jamaica, to recover damages from him for an alleged act of
trespass committed by him in seizing and detaining the schooner at Kingston. The
defendant pleaded to the jurisdiction of the Court, in effect alleging that he was Captain-
General and Governor- in Chief of the island of Jamaica, and that the acts complained of
were done by him as Governor of the island, and in the exercise of his reasonable dis-
cretion as such. The plea did not aver, even generally, that the seizure of the plaintiff's
ship was an act which the defendant was empowered to do as Governor, nor even that
it was an act of state. It was held that a Governor of a colony (in ordinary cases) can-
not be regarded as Viceroy ; nor can it be assumed that he possesses general sovereign
power. His authority is derived from his commission, and is limited to the powers
thereby expressly or impliedly entrusted to him. It is within the province of municipal
courts to determine whether anj' exercise of power by a Governor is within the limits
of his authority, and, therefore, an act of state. On these groimds it was decided that
the plea was not a sufficient answer to the action.

Mode of Appointment. — The constitutional position of the Governor-General, as a
component of the Executive Government of the Commonwealth, will be considered in
detail in our notes to Chapter II. (§ 271). Under this section allusion can appropriately
l>e made (1) to the practice which originall}* prevailed in connection with the creation of
the office of Colonial Governor ; the method of appointment to such office, and the
assignment of official powers and functions of a stereotyped character to the holder of
the office for the time being ; and (2) to the changes which, in recent years, have been
made in the direction of emancipating the Governor from the restraint and embarrass-
ment of antiquated instructions, and enabling him to act as a constitutional ruler, in
accordance with the recognized principles of Responsible Government.

Colonial Governors were formerly appointed by letters patent, under the Great Seal,
which defined the scope of their powers, duties, and functions. Pending the preparation
of the authorative instruments it was the practice, before 1875, to issue a minor com-
mission under the Rojal Sign Manual and Signet, to a new Governor, authorizing him
to act under the commission and instructions given to his predecessor in the same office.
The validity of this practice having been doubted, the Imperial Government decided in
1875 to abandon it, and thereafter, as soon as pi-acticable, to make permanent provision
by letters patent under the Great Seal in every colony of the empire for the constitution
of the office of (Governor therein, and it was further decided to fill the office as it became
vacant, by appointment to be made, by special commission, under the Royal Sign
Manual and Signet, which commission should recite the letters patent, and direct the
appointee to fulfil the duties of the office according to the permanent instructions issued
in connection therewith. (Todd, Pari. Gov. in Col., 2nd ed., p. 109.) There are
therefore, now, three important documents associated with the office of Governor : —

392 COMMENTARIES ON THE CONSTITUTION. [See. 2.

(1.) The Letters-Patent.
(2.) The Commission.
(3.) The Instructions.

The Letters Patent. — By the letters-patent constituting the office of Governor in
each colony, the powers and duties of the Governor were formerly defined as follows : —
(i.) To do and to execute all things that belong to the said command and the
trust reposed in him according to the Letters-patent, Commission and
Instructions.

(ii. ) To keep and use the Public Seal of the Colony,
(iii.) To appoint an Executive Council,
(iv. ) To make and execute grants of land according to law.

(v.) To appoint Judges, Commissioners, Justices, Ministers, and other officers,
(vi.) To grant a pardon to any ofifender who has committed a crime and to remit
fines and forfeitures.

(vii.) To remove or suspend from office any person upon sufficient cause appearing,
(viii.) To summon, prorogue, or dissolve any legislative body established within
the colony,
(ix.) To grant licenses for marriages, letters of administration, probate of wills,
and to deal with the custody and management of idiots, lunatics, and
their estates,
(x. ) To appoint a deputy to act in his occasional absence from the colony,
(xi.) Before entering on the duties of his office to cause his commission to be read
and published, and to take the Oath of Allegiance and the usual oath for
the due execution of the office of governor and for the due and impartial
administration of justice.

The Commission. — This document contains the appointment to the office consti-
tuted by the letters-patent, and the usual form of it ia as follows : —

Draft of a Commission passed under the Royal Sign Manual and Signet,

to be (governor and Commander-in-Chief of the Colony of

and its Dependencies.

Dated VICTORIA R.

VICTORIA, by the Grace of God, of the United Kingdom of (^reat Britain
and Ireland, Queen, Defender of the Faith, Empress of India : To Our
trusty and well-beloved

Greeting :

We do by this Our Commission under Our Sign Manual and Signet appoint you,

the said , until Our further pleasure shall be signified, to be

Our Governor and Commander-in-Chief in and over Our Colony of

and its Dependencies during Our Will and pleasure,

with all and singular the powers and authorities granted to the Governor
of Our said Colony, in Our Letters-patent under the Great Seal of Our
United Kingdom of Great Britain and Ireland constituting the Office of

Governor, bearing date at Westminster, the day of in

the year of Our Reign, which said powers and authorities

Wo do hereby authorize j-ou to exercise and perform, according to such
Orders and Instructions as Our said (iovernor for the time being hath
already or may hereafter receive from Us. And for so doing this shall be
your Warrant.

§56.]

THE PARLIAMENT. 393

And We do hereby command all and singular Our Officers, Ministers, and
loving subjects in Our said Colony and its Dependencies, and all others
whom it may concern, to take notice hereof, and to give their ready

obedience accordingly. Given at Our Court at Windsor, this day

of in the year of Our Reign.

By Her Majesty's Command.
The Inatruction-^. —The powers and functions of the governor partially enumerated in
the letters-patent were fonnerh* more fully detailed in the Instructions, and may be sum-
marized as follows : —

(i.) To administer the oath of allegiance to persons holding office or place of

trust,
(ii.) To communicate these instructions to the Executive Council of the Colony.
(iiL ) To summon the Executive Council for the despatch of business,
(iv.) To preside at the meetings of the Executive CounciL
(v.) To see that a full and exact record is kept of the votes and proceedings of

the Executive Council.
(vL) To consult the Executive Council in all cases, excepting in cases where the
Queen's service would sustain material prejudice by consulting the
Council, or when the matters to be decided should be too unimportant to
require their advice or too urgent to admit of their advice being given
within the time available ; provided that in such urgent cases he should
inform the Executive Council, as soon as possible, of the measures
adopted.
(viL) To act in opposition to the advice which may in any case be given by the
* Executive Council, provided that in such case he should fully report to

the Secretary of State for the Colonies any such proceeding, with the
grounds and reasons thereof,
(viii.) To transmit to the .Secretary of State for the Colonies twice in each year a

copy of the minutes of the Council for the preceding half-year,
(ix. ) To assent to or dissent from or reserve for the Queen's pleasure such bills as
may be passed by the colonial parliament subject to certain rules —

(o) That each different matter be provided for by a diflferent law
without intermixing different matters in the same Act having
no relation to one another.

(6) That no clauses be inserted in an Act foreign to the title of suc'h
Act.

(x. ) To reser\'e for the Queen's pleasure bills dealing with the following : —
(a) Divorce.
(6) Grants to the Governor.

(d) Bills imposing differential duties other than as allowed by the

Australian Colonies Duties Act, 1873.

(e) Bills apparently inconsistent with treaty obligations.

(/) BUls interfering with the discipline of the land and sea forces of

the Colony.
(g) Bills of an extraordinary nature and importance prejudicially*
affecting — (1) The Royal prerogative, or (2) the rights and pro-
pert j- of British subjects not residing in the Colony, or (3) the
trade and shipping of the United Kingdom and its Depen-
dencies,
f A) Bills containing provisions to which the Royal assent has been
once refused,
txi.) To transmit abstracts of all laws assented to by the Governor or reserved for

the Queen's pleasure, with explanatory observations,
(xii.) To transmit fair copies of the journals and minutes of the proceedings of
both Houses of Parliament " which you are to require from the clerks or
other proper officer in that behalf."

394 COMMENTARIES ON THE CONSTITUTION. [Sec. 2.

(xiii.) After reciting the Commission authorizing and empowering a Governor to
grant a pardon to any offender the instructions formerly proceeded as
follows : —

" Now, we do hereby direct and enjoin j'ou to call upon the judge
presiding at the trial of any offender ^^ho may from time to time be
condemned to suffer death by the sentence of anj' court within our said
colony, to make to you a written report of the case of such offender, and
such report of the said judge shall by you be taken into consideration at
the first meeting thereafter which maj' be conveniently held of our said
Executive Council, where the said judge shall be specially summoned to
attend, and you shall not pardon or reprieve any sucli offender as aforesaid
unless it shall appear to you expedient so to do upon receiving the advice
of our Executive Council therein, but in all such cases you are to decide
either to extend or to withhold a pardon or reprieve, according to your own
deliberate judgment, whether the members of our said Executive Council
concur therein or otherwise ; entering, nevertheless, on the minutes of the
said Council a minute of your reasons at length, in case you should decide
any such question in opposition to the judgment of the majority of the
members thereof."

(xiv. ) To promote religion and education among the native inhabitants of the

colony, and to protect them from violence and injustice,
(xv. ) Not on any pretence whatever to quit the colony without having first
obtained official leave from the Queen.
The new practice above referred to (p. 391) was framed to meet the views of Canada,
but was first brought into operation in February, 1877, on the occasion of the appoint-
ment of Sir H. Bartle Frere to the office of Governor and Commander-in-Chief of the
Cape of Good Hope, and it was followed in April, 1877, on the appointment of Sir W.
F. D. Jervois as Governor and Commander-in-Chief of South Australia. The instructions
accompanying the letters-patent in each of these cases were, in the main, an embodiment
of the instructions previously issued for the guidance of Governors, no alteration in
substance then being made. Indeed, they were practically the same in effect as those
issued to the Governor of New South Wales in the year 1829, when that colony ceased
to be a military settlement, and acquired a rudimentary form of civil government. A
comparison of the instructions issued to Australian Governors up to the year 1887, with the
commission and instructions issued to Sir Charles A. Fitzroy as Governor-in-Chief of
New South Wales in the 3'ear 1850, would show that no substantial alteration had been
made during that interval of .37 years. (Chief Justice Higinbotham's letter to Sir Henry
Holland, 28 Feb., 1887 ; Professor Morris, Memoir of George Higinbotham, p. 211.)

For some time previous to the initiation of the new practice, the Government of the
Dominion of Canada had been in communication with the Secretary of State for the
Colonies on the subject of an alteration in the terms of the royal instructions.

"It was contended by Mr. Blake on behalf of the Dominion that the peculiar
position of Canada, in relation to the mother country, entitled her to special considera-
tion, and that the existing forms, while they might be eminently suited to other
colonies, were inapplicable and objectionable in her case. For Canada is not merely a
colony or province of the empire, she is also a Dominion, composed of seven provinces
federally imited under an imperial charter or Act of Parliament, which expressly recites
that her constitution is to be similar in principle to that of tiie United Kingdom."
(Todd, Pari. Gov. in the Col., 2nd ed., p. 110.)

" As a foundation principle, necessary to be asserted and maintained in any instru-
ment which might be issued for the purpose of defining the powers of a Governor-
(Jeneral in Canada, Mr. Blake contended that it ought to be clearly understood that,
' as a rule, the governor does and must act through the agency (and upon the advice) of
ministers ; and ministers must be responsible for such action ;' save ' only in the rare
instances in which owing to the existence of substantial Imperial as distinguished from
Canadian interests, it is considered that full freedom of action is not vested in the
Canadian people.'" (/d., p. 111.)

" Mr. Blake's contention, ' that there is no dependency of the British Crown which
is entitled to so full an application of the principles of constitutional freedom as the
Dominion of Canada,' was admitted to be correct by her Majesty's Government ; and

§ 56.]

THE PARLIAMENT. 395

the official instruments made use of, in the appointment, on the 7th October, 1878, of
the Marquis of Lome to be Governor-GJeneral of Canada, clearly indicate, in their sub-
stantial omissions, as well as in their positive directions, the larger measure of self-
government thenceforth conceded to the new Dominion. This increase of power, to be
exercised by the government and Parliament of Canada, was not merely relatively
greater than that now enjoyed by other colonies of the empire, but absolutely more
than had been previously intrusted to Canada itself, during the administration of any
former Governor-General." (/d., p. 116.)

The Canadian Lttttrt- Patent. — By letters- patent, 5th October, 1878, the office of
■Governor-General of Canada was formally constituted, and the Governor-General was
thereby authorised and commanded by the Queen : —

(L) To do and to execute all things that belong to the said command and the
trust reposed in him according to the Letters-patent, Commission and
Instructions,
(ii. ) To keep and use the Public Seal of the Colony.
(liL) To appoint an Executive CounciL
(iv. ) To remo%'e or suspend from office any person holding any office under the

Crown in Canada, so far as the same may lawfully be done,
(v.) To exercise all powers lawfully belonging to the Crown in respect of the

summoning, proroguing, or dissolving the parliament of Canada,
(vi. ) To appoint any person or persons, jointly or severally, to be his deputy or
deputies within any part of Canada, to exercise such of the powers or
functions of the Governor-General as he may please to assign to him or
them.
The Canadian Commission, — On 7th October, 1878, the Marquis of Lome was
appointed by Royal Commission to be the Governor-General of Canada. This Com-
mission recited the letters-patent aforesaid and conferred the office upon Lord Lome
with all the powers and authorities belonging to it, according to such orders and instruc-
tions as have already been, or may hereafter be, communicated to him from the
sovereign ; and commanded "all and singular our officers, ministers, and loxTng subjects
in our said Dominion, and aJJ others whom it may concern, to take due notice hereof,
and give their ready obedience acc-ordingly." (Todd, 2nd ed., p. 122.)

The Canadian Instmctions. — The Royal Instructions accompanying the letters-
patent constituting the offic-e of Governor-General of Canada recited the letters-patent
aforesaid and enjoined the Governor-General for the time being : —

(i. ) To cause his commission to be read and published in the presence of the
Chief Justice or other judge of the Supreme Court, and of the members
of the Dominion Privy Council, and to be duly sworn upon entering
upon the duties of his office.

(ii.) To administer, or cause to be administered, the necessary oaths to all
persons who shall hold any office or place of trust in the Dominion.

(iiL) To communicate these and any other instructions he may rec-eive to the
Dominion Privy CounciL

(iv.) To transmit to the Imperial Government c-opies of all laws assented to by
him in the Queen's name, or reserved for signification of the Royal
pleasure ; with suitable explanatorj' observations and copies of the
journals and proceedings of the Parliament of the Dominion.

(v-) When any crime has been committed for which any oflFender might be tried
within the Dominion, " to grant a pardon to any accomplice, not being
the actual perpetrator of such crime, who shall give such information as
shall lead to the conviction of the principal offender ; and, further, to
grant anj- offender convicted of any crime, in any court, or before any
judge, justice, or magistrate, within our said Dominion, a pardon, either

396 COMMENTARIES ON THE CONSTITUTION. [See. 2.

free or subject to lawful conditions, or any respite of the execution of the
sentence of any such offender, for such period as to our said Governor-
Greneral may seem fit, and to remit any fines, penalties, or forfeitures
which may become due, or payable to us. Provided always, that our
said Governor-General shall not in any case, except where the ofiFence has
been of a political nature, make it a condition of any pardon or remission
of sentence that the offender shall be banished from, or shall absent him-
self from, our said Dominion. And we do hereby direct and enjoin that
our said Governor-General shall not pardon or reprieve any such offender
without first receiving, in capital cases, the advice of the Privy Council
for our said Dominion, and in other cases, the advice of one, at least, of
his ministers, and in any case in which such pardon or reprieve might
directly effect the interests of the empire, or of any countrj^ or place
beyond the jurisdiction of the government of our said Dominion, our said
Governor-General shall, before deciding as to either pardon or reprieve,
take those interests specially into his own personal consideration, in con-
junction with such advice as aforesaid."
(vi. ) Not to quit the Dominion without leave first obtained.
It will be seen that the Canadian Instructions differed in several material respects-
from those which were, at that time, applicable to other self-governing colonies, in
which the old instructions remained unaltered for several years longer. One of the most
prominent critics, and certainly the most uncompromising assailant, of the old instructions,
was the Hon. Geo. Higinbotham, once Attorney-General of Victoria, and subsequently
Chief Justice of tliat colony. In a letter, dated 28th February, 1887, addressed by him
to the Right Hon. Sir Henry T. Holland, then Secretary of State for the Colonies, Chief
Justice Higinbotham expressed and summarized the views which he had long held con-
cerning the unconstitutionality of some of these instructions.

" The radical vice of the Governor's letters patent, commission and instructions,
both public and private, appears to me to be this — that they studiously and persistently
refuse to take note of the fundamental change made in the public laws of the Australian
colonies by the Constitution Acts of 1854-5. In particular, U»ey pretend to confer powers
and authorities which have been already conferred with others by the Constitution
Statutes ; they decline to recognize the dual character of the Governor, and applying a
misleading title to the advisers of the Governor in one of his two cliaracters, they affect
to ignore altogether the exiiitence of responsible government. I will refer to particular
clauses which present the most striking illustrations of a violation in these respects of
constitutional law.

"Clause II. of the letters patent. — ' We do hereby authorize, empower, and com-
mand our said Governor and Commander-in-Chief (hereinafter called the Governor) to do
and excute all things that belong to his said office, according to the tenor of these our
letters patent, and of such commission as may be issued to him under our sign manual
and signet, and according to such instructions as may from time to time be given to him
under our sign manual and signet, or by our order in our Privy Council, or by us through
one of our principal Secretaries of State, and to such laws as are now or shall hereafter
be in force in the colony.'

"This purports to grant, subject to limitations, certain authorities and powers
already vested in the Governor by the Constitution Statute. The grant is, in my
opinion, void, and the limitations and tlie connnands founded thereon are also void and
illegal.

" Clause VI. of instructions. — ' In the exercise of the powers and authorities granted
to the Governor by our said letters patent, he shall in all cases consult with the
Executive Council, excepting only in cases which are of such a nature that, in his
judgment, our service would sustain material prejudice by consulting the said Council
thereupon, or when the matters to be decided are too unimportant to require their
advice, or too urgent to admit of their advice being given by the time within which it
may necessary for him to act in respect to any such matters— in all such urgent cases, he

^56] THE PARLIAMENT. 397

shall, at the earliest practical period, corumunicate to the said Council the measures
which he may so have adopted, with the reasons thereof.'

' • This is an instruction which a Governor does not, and cannot obey. The Executive
Council, in the proper sense of this expression, has never been convened in Victoria.
Like the Privj' Council, it could not be convened, except by the direction of the Vic-
torian Premier. If by the words ' Executive Council,' the ' Cabinet ' is intended to
be referred to, this instruction is unmeaning and void. It is, doubtless, the duty of the
representative of the Sovereign to consult his advisers, and it is their duty to advise him
in all matters connected with local affairs, but the duty in neither case springs from this
roj'al instruction. If it be intended to direct the Governor to c-onsult his advisere in
matters connected with his duty as an officer of the Imperial Government, this is an
indirect instruction, offensive in form and without either legal authority or means of
enforcement, to Her Majesty's Ministers to do something which they are not required by
their duty as Ministers of the Crown to do.

" Clause VII. of instructions. — ' A Governor may act in the exercise of the powers
and authorities granted to him by our said letters patent in opposition to the advice
given to him bv the members of the Executive Council, if he shall in any case deem it
right to do so, but in any such case he shall fully report the matter to us by the first
convenient opportunity, with the grounds and reasons of his action.'

" I think that this instruction can only be characterized as a distinct denial of the
fundamental principle of the existing public law of Victoria. As a direct instigation to
Her Majesty's representative to violate that law, it offers a grave indignity and conveys
an unmistakable menace to him and to his advisers, who are here and elsewhere mis-
named the Executive Council.

"Clause XI. of instructions. — ' Whenever any offender shall have been condemned
to suffer death by the sentence of any court, the Governor shall call upon the judge who
presided at the trial to make to him a written report of the case of such offender, and
shall cause such report to be taken into consideration at the first meeting thereafter
which may be conveniently held of the Executive Council, and he may cau.se the said
judge to be specially summoned to attend at such meeting and to produce his notes
thereat. The Governor shall not pardon or reprieve any such offender unless it shall
appear to him expedient so to do upon receiving the advice of the said Executive
Council thereon ; but in all such cases he is to decide either to extend or to withhold a
pardon or a reprieve according to his own deliberate judgment, whether the members of
the E.xecative Council concur therein or otherwise ; entering nevertheless on the minutes
of the said Executive Council a minute of his reasons at length in case he should decide
such action in opposition to the judgment of the majority of members thereof.'

"This instruction presents a glaring instance of not less flagrant illegality. The
prerogative of mercy is a prerogative essentially necessary to the administration of
criminal law. The exercise of it in Victoria is therefore a matter in which the repre-
sentative of the Crown can and ought to act solely upon the advic-e of his responsible
advisers, and neither the Crown nor the Crown's Imperial advisers are legally competent
to dictate or advise upon his action. By this instruction the Governor is personally
onlered to call upon the judge to make to him a written report — an order which, if it
were conveyed otherwise than through and by the advice of the Minister, it would be, I
conceive, the duty of the judge to refuse to comply with. The Governor is further
required to decide ' either to extend or to withhold a pardon or a reprieve, according to
his own deliberate judgment, whether the members of the Executive Council concnr
therein or otherwise.' This unjust and cruel as well as illegal order is not obe\-etl, and
could not be obeyed by any Governor in the only cases to which it could apply. It has
been attempted to excuse this instruction on the ground that it is virtually obsolete, yet
on two separate occasions long subsequent to the passing of the Australian Constitution
Acts, the Colonial Office has expressed its approval of this instruction, and has repeated
the injunction to the Governor to obey it.

" Clauses VIII. and X. of instructions. — VIII. ' In the execution of such powers as
are vested in the Governor by law for a.ssenting to or dissenting from or of reserving for
the signification of our pleasure, bills which have been passed by the Legislature of the

398 COMMENTARIES ON THE CONSTITUTION. [See. 2.

colony, he shall take care as far as may be practicable that in the passing of all laws
each different matter be provided for by a different law withoiit intermixing in one and
the same law such things as have tio proper relation to each other ; and that no clause
be inserted in or annexed to any law which shall be foreign to what the title of such law
imports, and that no perpetual clause be part of any temporary law.' X. ' The
Governor is to take care that all laws assented to in our name or reserved for the signi-
fication of our pleasure thereon, sliall, when transmitted by him. be fairly abstracted in
the margins, and be accompanied, in such cases as may seem to him necessary, with such
explanatory observations as may be required to exhibit the reasons and occasions for
proposing such laws ; and shall also transmit fair copies of the journals and minutes of
the proceedings of the legislative bodies of the colonj', which he is to require from the
clerks or other proper officers in that behalf of tlie said legislative bodies.'

" These clauses are not illegal because they relate to the reservation of bills for the
signification of Her Majesty's pleasure. I refer to them only as showing the almost
contemptuous disrespect and want of consideration displayed by the Colonial Office
towards Australian Parliaments and Imperial officers in Australia. To order a Governor
to take care that in the passing of all laws each different matter shall be provided for by
a different law may at one time have been proper and not unnecessary. Addressed, as
the order indirectly is, to Legislatures consisting of two Houses of Parliament like the
Legislative Council and the Legislative Assembly of the various Australian colonies, it
is an insult to all of those bodies. And it has proved on one occasion, at least, a cause
of actual embarrassment to Her Majesty's Government in Victoria. When the
Governor is ordered to I'equire from the clerks in Parliament fair copies of the journals
and minutes of the proceedings of the Legislative bodies, he is humiliated by being
needlessly instructed to make a requirement which, if disputed, he could not enforce,
and for the fulfilment of which he is in any and in every case indebted to the aid — which
is, of course, never withheld — of a Minister of the Crown."

One of the immediate results of this important letter was that Sir Henry Holland,,
afterwards Lord Knutsford, consulted the Imperial law officers with reference to the
points so forcibly raised by the Chief Justice, and in July, 1888, he re-drafted the
instructions with a view of meeting many of the points brought under his notice and of
bringing the instructions more into conformity w ith tlie existing state of things. Lord .
Knutsford went out of office in 1892, and one of his last official acts was the promulgation
of the re-dratted royal instructions for the guidance of colonial governors. Referring to
this important event. Professor Morris writes : —

" The improvement was enormous. For tiie first time Responsible Government is
recognized. For the first time the Governor is instructed to accept the advice of his
ministers, whereas all earlier editions seem to imply that he is to be careful about
accepting such advice and ready to oppose them." (Professor Morris, Memoir of George
Higinbotham, p. 202.)

" The measure of the victory with respect to Downing Street is to be found in the
altered instructions. Tlie Home law officers told Lord Knutsford that it was not illegal
for governors to correspond with the Colonial Office ; but the tone of tliat office is not now
the tone of Mr. Cardwell, nor of the Duke of Buckingham, but rather this ' involves no
question calling for the intervention of the Imperial Government ; it is not one on which
it .seems to me incumbent to express an opinion.' Contrast the instructions to Sir
Charles Darling, signed ' V. Rg.,' of June 23rd, 1863, with those published in the
Victoria Governmevt Gazette of September 2n(l, 1892, signed, Julj' 9th of that j'ear,
*V. R. I.' The difference is enormous. The Victorian newspapers of that September
commented on the change, and praised the wisdom of the Colonial Office in making it;
but no one i-einembered the Victorian politician whose peisistent efforts were at last
successful. That number of the Gazette was published only four months before his
death." (Id. p. 229.)

The New Instructions. — The re-drafted instructions, approved by Her Majesty on
the advice of Lord Knutsford, contained a complete recognition of the principle of
responsible government, in form as well as in practice, in all self-governing colonies.
All the old and obsolete provisions which were really only applicable to Crown colonies,
and particularly tho.se complained of bj- Chief Justice Higinbotham, were now eliminated.
As portions of these new instructions will be the basis of the " powers and functions of

^^56.] THE PARLIAMENT. 399

the Queen " which may be assigned by Her Majesty to the Governor-General under sec.
2 of this constitution, they may be here appropriately inserted : —

" (i.) In these Our Instructions, unless inconsistent with the contest, the term
' the Governor ' shall include ever}' person for the time being administer-
ing the Government of the Colony, and the term • the Executive
Council ' shall mean the members of Our Executive Council for the
Colony who are for the time being the responsible advisers of the Governor,
(ii. ) The Governor may, whenever he thinks fit, require any person in the public
service to take the Oath of Allegiance, together with such other Oath or
Oaths as may from time to time be prescrilied by any Law in force in the
Colony. The Governor is to administer such Oaths or cause them to be
administered by some Public Officer of the Colony,
(iii.) The Governor shall forthwith communicate these Our Instructions to the
Executive Council, aud likewise all such others, from time to time, as he
shall find convenient for Our Service to impart to them,
^iv.) The Governor shall attend and preside at the meetings of the Executive
Council, unless prevented by some necessary or reasonable cause, and in
his absence such member eis may be appointed by him in that I ehalf , or
ill the absence of such member the senior member of the Executive
Council actually present shall preside ; the seniority of the members of
the said Council being regulated according to the order of their respective
appointments as members thereof,
(v.) The Executive Council shall not proceed to the despatch of business unless
duly summoned by authority of the Governor, nor unless two members
at the least (exclusive of the (Jovernor or of the member presiding) be
present and assisting throughout the whole of the meetings at which any
such business shall be despatched,
(vi.) In the execution of the powers and authorities vested in him, the Governor
shall be guided by the advice of the Executive Council, but if in any case
he shall see sufficient cause to dissent from the opinion of the said
Council he may act in the exercise of his said powers and authorities in
opposition to the opinion of the Council, reporting the matter to Us
without delay, with the reasons for his so acting.
In any such case it shall be competent to any member of the said Coimcil
to require that there be recorded upon the Winutes of the Council the
grounds of any advice or opinion that he may give upon the question.
<vii.) The (iovernor shall not, except in the cases hereunder mentioned, assent in
Our name to any Bill of any of the following classes :—

(1.) Any Bill for the divorce of persons joined together in holy

matrimony.
(2. ) Any Bill whereby any grant of land or money, or other donation

or gratuity, may be made to himself.
(3.) Any Bill afiecting the cuiTcncy of the Colony.
(4.) Any Bill imposing differential duties (other than as allowed by

the Australian Colonies' Duties Act, 1873).
(5.) Any Bill the provisions of which shall appear inconsistent with

obligations imposed upon Us by 'J'reatj'.
(6.) Any Bill interfering with the discipline or control of Our forces

in the Colony by land or sea.
(7.) Any Bill of an extraordinar}- nature and importance, whereby
Our prerogative oi- the rights and property of Our subjects
not residing in the Colony, or the trade and shipping of the
Unite<l Kingdom and its Dependencies, may be prejudiced.
(8.) Any Bill containing provisions to which Oiu- assent has been
once refused, or which has been disallowed by Us.

Unless he shall have previously obtained Our Instractions
upon such Bill, through one of Our Principal Secretaries of State,
or unless such Bill shall contain a clause suspending the operation
of such Bill until the signification in the Colony of Our pleasure
thereupon, or unless the Governor shall have satisfied himself
that an urgent necessity exists requiring that such Bill be
brought into immediate operation, in which case he is authorized
to assent in Our name to such Bill, unless the same shall be
repugnant to the law of England, or inconsistent with any
obligations imposed upon Us by Treaty. But he is to transmit
to Us bj' the earliest opportunity the Bill so assented to, together
with his reasons for assenting thereto.

400 COMMENTARIES ON THE CONSTITUTION. [Sec. 3.

(viii. ) The Governor shall not pardon or reprieve any offender without first
receiving in capital cases the advice of the fjxecutive Council, and in
other cases the advice of one, at least, of his Ministers ; and in any case
in which such pardon or reprieve might directly atfect the interests of our
empire, or of any country or place beyond the jurisdiction of the Govern-
ment of the colony, the Governor shall, before deciding as to either pardon
or reprieve, take those interests specially into his ownpersonal consideration
in conjunction with such advice as aforesaid.

(ix.) All commissions granted by the Governor to any persons to be Judges'
Justices of the Peace, or other officers shall, unless otherwise provided
by the law, be granted during pleasure only,
(x.) The Governor sliall not quit the colony without having first obtained leave
from us for so doing under our Sign Manual and Signet, or through one
of our principal Secretaries of State, except for the purpose of visiting
the Governor of any neighbouring colony for periods not exceeding one
month at any one time, nor exceeding in the aggregate one month for
every year's service in the colony.

(xi. ) The temporary absence of the Governor for any period not exceeding one
month shall not, if he have previously informed the Executive Council,
in writing, of his intended absence, and if he have duly appointed a
Deputy in accordance with our said letters-patent, be deemed a departure
from the colony within the meaning of the said letters-patent.

V.R.I."

Special Instructions. — Every colonial governor, after his appointment to office, is
subject to the control of the Crown, as an Imperial officer. In addition to the permanent
and general instructions which he receives in connection with his commission, he may,
from time to time, be charged with any further instructions, special or general, which
the Crown may lawfully communicate to him under particular circumstances. The
medium of communication between the sovereign and her representative in any British
colony is the Secretary of State. (Todd, 2nd ed., p. 122.)

In the absence of special appointment, the governor of a British possession is also
ex-officio Vice-Admiral thereof. (26 and 27 Vic. c. 24, sec. 3, and 30 and 31 Vic. c. 45, s.
4 ; repealed and re-enacted by the Colonial Courts of Admiralty Act, 1890, 53 and 54
Vic. c. 27, s. 10.)

Salary of Governor-General.

3. There shall be payable to the Queen out of the Con-
solidated Revenue Fund of the Commonwealth, for the salary
of the Governor- GeneraP", an annual sum which, until the
Parliament otherwise provides, shall be ten thousand pounds.

The salary of a Governor-General shall not be altered
during his continuance in office.

United Statks.— The President shall, at stated times, receive for his services a compensation,
which shall neither be increased nor diminished during the period (or which he shall have
been elected, and he shall not receive within that period any other emolument from the

• United States, or any of them. -Const. (Art. II. sec. 1, 7).

Switzerland.— The President of the Confederation and the other members of the Federal
Council receive an annual salary from the Federal Treasury.— Const. (Art. 99).

Canada.— Unless altered by the Parliament of Canada, the salary of the Governor-General
shall be ten thousand pounds sterling money of the United Kingdom of Great Britain and
Ireland, payable out of the Consolidated Kevenue Fund of Canada, and the same shall
form the third charge thereon.— B.N. A. Act, 18b7, sec. 105.

HiSTOBicjAL Note. —Clause 3, Chap. I., of the Conmionwealth Bill of 1891 was as
follows : —

"The annual salary of the Governor-General shall be fixed by the Parliament from
time to time, but shall not be less than ten thousand pounds, and shall be payable to
the Queen out of the Consolidated Revenue Fund of tlie Commonwealth. The salary
of a Governor-General shall not be diminished during his continuance in office."

^57.]

THE PARLIAMENT. 401

In Committee, Sir Harry Atkinson moved the omission of the words *' but shall not
be less than £10,000 ;" but after discussion he withdrew the amendment. Sir John
Bray moved to omit "but shall not lie less than," and insert "and until so fixed shall
be." This was negatived by 24 votes to 12. An amendment by Sir George Grey, to
substitute "altered" for "diminished," was also negatived. (Conv. Deb., Syd. L1891],
pp. 578-85.)

At the Adelaide session, 1897, the clause was intro^luced as follows : — " The annual
salary of the Governor-General shall be ten thousand pounds, and shall be payable to the
Queen out of the Consolidated Revenue Fund of the Commonwealth." In Committee,
ou the motion of Mr. Higgins, the words " Until the Parliament otherwise provides"
were prefixed. An amendment by Mr. Howe, to substitute "seven "for "ten,'' was
negatived. On Mr. Barton's motion, the second paragraph was added. (Conv. Deb.,
Melb., pp. 629-33 )

At the Sj'dney session, suggestions by the Legislative Assembly and Legislative
Council of South Australia, to reduce the salary to £7,000 and £8,000 respectively, were
negatived, as was also an amendment by ^Ir. Glynn to omit the second paragraph.
(Conv. Deb., Syd. [1897], p. 254.) Drafting amendments to the first paragraph brought
it into its present shape.

§ 57. " Salary of the Governor-General."

"On May 22, 1868, at the close of the first session of Parliament of the new
Dominion of Canada, an Act passed by the Senate and House of Commons ' to fix the
salary of the Governor-General' was reserved for the consideration of Her Majesty's
pleasure thereon. It was proposed, by this Act, to reduce the salary of the (rovernor-
General from £10.0<X), at which rate it had Ijeen fixed by the Imperial Act. of Union, in
1867 (subject to alteration by the Parliament of Canada), to £6,500. But on July 3l»,
1868, the Secretary of State for the Colonies notified Lord ilonck (the Governor-General)
that while it was ' with reluctance, and only on serious occasions, that the Queen's
government can advise Her Majesty to withhold the royal sanction from a bill which has
passed two branches of the Canadian Parliament,' yet that a regard for the interests of
Canada, and a well-founded apprehension that a reduction in the salary of the Governor
which would place the office, as far as salary is a standard of recognition, in the third
class among colonial governments, obliged Her Majesty's Government to advise that this
bill should not be permitted to become law. In accordance with the opinions entertained
by the Imperial Government on this subject, and with the right to legislate thereon,
which was expressly conferred upon the Parliament of Canada by the 105th section of the
British North America Act, the Dominion Parliament, in 1869, re enacted, by their own
authority, the clause of the Imperial statute which fixed the salary of the Governor-
General at £10, (MX) sterling, the same to l>e payable out of the consolidated revenue of
Canada. This Act was necessarily reserved, under the royal instructions ; but it received
the assent of Her Majesty in council on August 7, 1869. From this date, no further
attempt has been made to reduce the salary of the Governor-General." (Todd, Pari.
Gov. in the Col., 2nd ed., p. 177.)

" The present compensation of the President of the United States, as fixed by statute,
is $50,000 per annum, together with the use, as a residence, of the executive mansion,
and of the furniture and effects kept therein." (Burgess, Political Sc, II. p. 244.)

'■ I think we might trust the Federal Parliament Mith fixing the amount, and then,
of course, there will be an after-clause that the salary of no Governor-General is to be
changed during his term of office That is only fair. But we might trust the Federal
Parliament with saying from time to time how much salary should be paid to the
Governor-General." ' (Mr. H. B. Higgins, Conv. Deb., Adel. [1897], p. 629.)

" I beg to say that the object of the Constitutional Committee was to lift this
♦juestion of the salai-y of the Governor-General above that incessant nagging and criticism
which has given rise to some of the most discreditable episodes in our political life. We
have had in our various Parliaments all sorts of questions as to the value of a Governor,
or the value of our connection with the British Crown, with a view to diminish his
salary. The Governor-General is the only constitutional link we have between the
mother-country and ourselves, and £10,000 is not too small a sum ; indeed, everyone will
admit that it is a fair salary. This is the salary of the President of the United States,
and the object of the Constitutional Committee wais to lift the office of the Governor-
General, and the person himself, above the attacks to which I have referred — attacks
which are made by persons who either despise the British Crown, or wish to subvert the
•26

402 COMMENTARIES ON THE CONSTITUTION. [Sec. 4.

position of the Governor-General. Under cover of these arguments, attacks are made
upon the individuals wlio represent the Queen in the different colonies. As the Governor-
General is to be a visible link between the British empire and ourselves, we should place
him beyond the possibility of any trafficking being indulged in about the question of
salary." (Mr. G. H. Reid, id., p. 629.)

" I feel as strongly as Mr. Reid does the undesirability of fiequent attacks upon
the Governor, or his salary, or his perquisites, or anything else that belongs to him ; but
I am afraid that liability to attack would not be at all lessened if people were disposed
to make it by inserting this provision for a fixed salary. My own inclination is that the
reverse would be the case, because if people were disposed to cast unpleasant aspersions
upon the Governor-General they would be more likely to do so if they could not relieve
any antagonistic feeling they had by reducing his salary or that of his successors. There
is a great deal of human nature in man, and if people, however fair they might wish to
be, felt they could not gratify in any other way the criticism they may wish to indulge
in. they would indulge in it with a great deal more acerbity if thej' could not touch the
salary of the Governor-General or his successor. We may very fairly leave it with the
Federal Parliament we are going to constitute, and the men who will compose this
Senate and House of Representatives, to deal fairly and honourably with the Governor-
General and his salary." (Mr. .J. H. Symon, id., p. 630.)

Provisions relating to Governor-General.

4, The provisions of this Constitution relating to the
Governor-General extend and apply to the Governor-General
for the time being, or such person as the Queen may appoint^*
to administer the Government of the Commonwealth ; but no
such person shall be entitled to receive any salary from the
Commonwealth in respect of any other office^'' during his
administration of the Government of the Commonwealth.

Canada.— The provisions of this Act referring to the Governor-General extend and apply to
the Governor-General for the time being of Canada, or other the Chief Executive Officer
or Administrator for the time being carrying on the Government of Canada on behalf and
in the name of the Queen, by whatever title he is designated.— B.N.A. Act, 1867, sec. 10.

Historical Note. — Clause 4, Chap. I., of the Commonwealtli Bill of 1891 was as
follows : —

" The provisions of this Constitution relating to the Governor-General extend and
apply to the Governor-General for the time being or other the Chief Executive Officer or
Administrator of the Govenmieiit of the Commonwealth, by whatever title he is desig-
nated."

At the Adelaide session, 1897, the clause was introduced as follows : —

"The provisions of this Constitution relating to the Governor-General extend and
apply to the Governor-General for the time being, or such other person as the Queen
may appoint to be the Chief Executive Officer or Administrator of the Government of
the Commonwealth ; but no such person shall be entitled to receive any salarj' in respect
of any other office under the Crown during his administration of the Government of the
Commonwealth."

In Committee the words "under the Crown" were omitted, and "from the
Commonwealth" inserted after " salary." (Con v. Deb., Adel., pp. 6.33-5 ) At the Mel-
bourne session, drafting amendments were made after the fourth report.

§ 58. '' Such Person as the Queen may Appoint."

These words refer to the appointment of an acting Governor-General or Adminis-
trator of the Government of the Commonwealth, appointed under commission by the
Queen. This officer, when so appointed, is authorized to exercise all the powers and
functions of the Governor-General. He is not to be confused with the Deputy Governor
General, provided for by sec. 126. A Deputy Governor-General can onlj' be appointed

§§58-59.]

THE PARLIAMENT. 403

by the Governor-General himself nnder the authority of the Queen, and can only exercise
such powers and functions as are assigned to him by the Governor-General, subject to
any limitations imposed by the Queen ; and the appointment of a Deputy does not affect
the exercise by the Governor-General himself of those powers. (See sec. 126. )

'• During the temporary absence of a Governor from his colony, it was formerly the
general practice for the Crown, by a dormant commission under the sign-manual, to
empower the Chief Justice or senior judge therein to act as administrator of the
government ; but difficulties having sometimes arisen in carrying out an arrangement of
this kind, it is not now invariably resorted to, at least, in the first instance. Instead of
this provision to supply the place of an absent Governor, it is now customary either to
appoint a Lieutenant-Governor or Administrator of the Government under the royal
sign -manual ; or else that the senior olficer for the time being of Her Majesty's regular
troops in the colony shall be empowered to act in this capacity. But where no such
provision has been made, it is usual and appropriate for the Chief Justice or senior judge
to be authorized to act as Administrator of the Government, in the event of the death,
incapacity, removal or departure from the Government of the Governor and (if there be
such an officer) of the Lieutenant Governor of the colony." (Todd, Pari. Gov. in the
Col, 2nded. p. 123.)

§ 59. " Salary ... in Respect of any other Office.**

At the Adelaide session of the Convention, a section was _ inserted in Chapter III.
providing that no person holding any judicial office should be appointed to or be capable
of holding the office of Governor-General, Lieutenant-Governor, Chief Executive
Officer, or Administrator of the Government. (Adel. Bill, sec. 80 ; Conv. Deb. Adel.
pp. 1174-6 ) At the Melbourne session, this section was eliminated on the
ground that it contained an undue limitation of the prerogative of the Crown, and
that it might prejudically restrict the choice of the Crown in the appointment of an
Administrator of the Government for the time being. The Queen has now, therefore,
unfettered discretion in the selection and appointment of an Administrator of the
Federal Government ; he may be an Imperial officer ; he may be an officer of the
Commonwealth, such as President of the Senate or a Judge of the High Court ; he may
be a Governor of a State or other State officer ; or he may not occupy anj- official position
whatever at the time of his appointment. No qualification or disqualification for the
office is prescribed, the Queens choice, in conformity with the advice of her Imperial
Ministers, being considered a sufficient guarantee for the appointment of a suitable and
acceptable Federal Administrator, as well as for that of Governor-General himself. No
mention is made in this section of the salary to be paid to the Administrator for his
services in that capacity. It may be assumed that he will be paid out of the £10,000
per year payable to the Queen out of the consolidated fund of the Commonwealth for
the maintenance of the Governor-Generalship, and that the amount will be apportioned
in some manner satisfactory to the Imperial Government. There is, however, a distinct
provision that no person acting as Administrator shall be entitled to receive any salary
from the Commonwealth in respect of any other office during his administration of the
Government of the Commonwealth. This inhibition will prevent a Federal Judge,
should he be appointed Administrator, or the President of the Senate, should he be
so appointed, from receiving the salary annexed to those respective offices during his
administration of the Government. But should the Governor of a State or other State
officer be so appointed,"it wQl be competent for him to receive the salary of his State
office as well as the salary for the Federal office.

404 COMMENTARIES ON THE CONSTITUTION. tSec. 5.

Sessions of Parliament. Prorogation aiid dissolution. Summoning Parliament.

First Session.

5. The Governor-General may appoint such times*' for
holding the sessions of the Parliaments^ as he thinks fit, and
may also from time to time, by Proclamation or otherwise,
prorogue*^ the Parliament, and may in like manner dissolve®*
the House of Representatives.

After any general election the Parliament shall be
summoned®* to meet not later than thirty days after the day
appointed for the return of the writs*'\

The Parliament shall be summoned to meet not later
than six months after the establishment of the Common-
wealth.

United Statks. — The Congress shall assemble at least once in every j'ear, and such meeting
shall be on the first Monday in December, unless they shall by law appoint a different day.
— Const., Art. I., sec. 4, subs. 2.

Canada. — The Parliament of Canada shall be called together not later than six months after
the union.— B.N.A. Act, 1867, sec. 19.

Historical Note. — In the Commonwealth Bill of 1891, the first and third para-
graphs of this section were contained, in almost identical words, in Clause 6 of Chap. I. ;
whilst the substance of the second paragraph was added to clause 42 in Committee, on
the motion of Sir John Bray. (Conv. Deb., Syd. [1891], pp. 585, 643-62.)

At the Adelaide session, the same provisions Mere introduced almost verbatim.
(Conv. Deb., Adel., p. 635.) At the Sj'dney session, the question of dissolving the
Senate was raised, and the clause was postponed till the deadlock question had been
settled. (Conv. Deb., Syd. [1897], pp. 254-6, 987.)

At the Melbourne session, drafting amendments were made before the first report
and after the fourth report ; the second paragraph being brought up from the " Dura-
tion of House of Representatives " clause (sec. 28).

§ 60. "May Appoint such Times."

This is the first section in the Constitution in which a specific power to perform
executive acts is vested in the Governor-General. It will be noticed that the section
states that the Governor-General may perform these acts, and there is no reference to
his so acting by the advice of the Federal Executive Council. The powers conferred on
the Governor-General by this, and other sections similarly worded, may be here
summarized for the purpose of comparing them with other powers conferred on the
Governor-General in Council.

Statutory Powers of the Governor-General.— The Governor-General may
appoint the times for the holding the sessions of Parliament (sec. 5).

The Governor-General may prorogue Parliament (sec. 5).

The Governor-General may dissolve the House of Representatives (sec. 5).

The Governor-General shall notify to the Governor of a State interested the
happening of a vacancy in the Senate (sec. 21).

The (iovemor-General may recommend to Parliament the appropriation of revenue
or money (sec. 56).

The Governor-General may dissolve the Senate and the House of Representatives
simultaneously (sec. 57).

§60.1

THE PARLIAMEXT. 405

The Governor- General may convene a joint sitting of members of both Houses
(sec. 57.)

The Governor-General may assent in the Queen's name to a proposed law, or with-
hold assent, or reserve the law for the Queen's pleasure (sec. 58).

The Governor-General may recommend to Parliament amendments in proposed
laws (sec. 58. )

The Governor-General may exercise, as the Queen's representative, the executive
power of the Commonwealth (sec. 61).

The Governor-General shall choose and sunmion members of the Federal Executive
Coimeil, and may dismiss them (sec. 62>.

The Governor-General may appoint officers to administer departments of State, and
may dismiss them (sec. 64K

The Governor-General may, in the absence of Parliamentary provision, direct what
offices shall be held by Ministers of State (sec 65).

The Governor-General as the Queen's representative has the command-in-chief of
the naval and military- forces (sec. 68).

The Governor-General may proclaim dates when certain departments shall be
transferred to the Commonwealth (sec. 69).

The Governor-General may, " in respect of matters which, under this Constitution,
pass to the Executive Government of the Commonwealth,"' exercise all powers and
functions which at the establishment of the Commonwealth are vested in the Governor
of a colony (sec. 70).

Statctoky Powers of the Governor Gexerai. ix Couscil.. — On the other hand
there are numerous sections in which authority to do executive acts is vested expressly
in the Governor-General in Council, thus : —

The Governor-General in Council may issue writs for general elections of the House
of Representatives (sec. 32).

The Governor-General in Council may issue writs for elections to fill vacancies in
the House of Representatives (sec. 3.3).

The Governor-General in Council may establish departments of State (sec. 64).

The Governor-General In Council uuay appoint and remove all officers except
-Ministers of State (sec. 67).

The Governor-General in Council may exercise, " in respect of matters which under
this Constitution pass to the Executive Government of the Commonwealth," all powers
and functions which at the establishment of the Commonwealth are vested in the
Governor of a colony with the advice of his Executive Council (sec. 70).

The Governor-General in Council shall appoint the Justices of the High Court, and
may appoint Justices of other Federal Courts (sec. 72).

The Governor-General in Council may, on addresses from both Houses, remove
Justices of the High Court and of other Federal Courts (sec. 72).

The Governor-General in Council may draw money from the Federal Treasury and
expend the same until the first meeting of the Parliament (sec. 83).

The Governor-General in Council may appoint members of the Inter-State Com-
mission (sec. 103).

The Governor-General in Council may, on addresses from both Houses, remove
members of the Inter State Commission (sec. 103).

Mode of Exercisixg thkse Powers. — Without anticipating our general comments
ou the Executive Government of the Commonwealth, which naturallj- appear under the
heading of Chapter II. (note § 271) it may be advisable here to make a preliminary
observation in explanation of the two groups of executive powers, so classified.

406 COMMENTARIES ON THE CONSTITUTION. [Sec. 5.

The first group includes powers which properly or historically belong to the pre-
rogatives of the Crown, and survive as parts of the prerogative ; hence they are vested
in the Governor-General, as the Queen's representative. The second group includes
powers either of purely statutory origin or which have, by statute or custom, been
detached from the prerogative ; and they can, therefore, without any constitutional
impropriety, be declared to be vested in the Governor-General in Council. But all thos?
powers which involve the performance of executive acts, whether parts of the prerogative
or the creatures of statuJte, will, in accordance with constitutional practice, as developed
by the system known as responsible government, be performed by the Governor-
General, bj'^ and with the advice of the Federal Executive Council. (See Note § 275.)
If the section now under review had been made to read " the Governor-General in
Council may appoint such times for holding the sessions of the Parliament," &c , the
words " in Council " would have been an invasion of the Roj'al prerogative ; because it
is invariably recognized as a prerogative of the Crown to summon, prorogue and dissolve
Parliament. The words would moreover have been mere surplusage ; nothing would
have been gained, since parliamentary government has well established the principle
that the Crown can perform no executive act, except on the advice of some minister
responsible to Parliament. Hence the power nominally placed in the hands of the
Governor-General is really granted to the people through their representatives in Parlia-
ment. Whilst, therefore, in this Constitution some executive powers are, in technical
phraseology, and in accordance with venerable customs, vested in the Governor-General,
and others in the Governor-General in Council, they are all substantially in pari materia,
on the same footing, and, in the ultimate resort, can only be exercised according to the
will of the people.

" There are certain prerogative rights which have been long demitted or got rid of
by statute or by other practice — generally by statute — and in any statute drafted the
words " in Council " are inserted. There are certain other prerogative rights which,
not having been the subject of such demission, as it is sometimes called, I believe, not
having been given up in any way, apparently, are not so described in a statute. There
are certain prerogative rights — this was all gone into at Adelaide, and decided by the
Convention according to the contention I am advocating — which are not described in a
statute as rights of the Governor in Council, simply because no statute has ever dealt
with them, and because they belong to that part of the prerogative which has never
been nominally given up by the Crown. Of such is the power to summon and dissolve
Parliament, to which no one who understood these matters would dream of adding
the words ' in Council.' But yet these rights can never be exercised without the advice
of a responsible Minister, and if that advice is wrongly given it is the Minister who
suffers." (Mr. E. Barton, Conv. Ueb., Melb., pp. 2263-4.)

The executive powers referred to, however, must not be confounded with the
authority vested in the Governor-General to assent to a proposed law oi withhold his
assent or to reserve it for the Queen's pleasure. (See Note, § 267.) This is not an
executive, but a legislative power entrusted to him as the Queen's representative and
one which he may exercise "according to his discretion." That is the only section in
which a discretionary power is clearly and unequivocally given to the Governor-General ;
it is in reference to matters of legislation and not matters of administration. (See Note,
§ 271, "The Executive Government.")

§ 61. "Holding the Sessions of the Parliament."

" It is by the act of the Crown alone that Parliament can be assembled. The only
occasions on which the Lords and Commons have met by their own authority, were pre-
viously to the restoration of King Charles II., and at the Revolution in 1688. The hrst
Act of Charles the Second's reign declared the Lords and Commons to be the two houses
of Parliament, notwithstanding the irregular manner in which they had been assembled ;
and all their Acts were confirmed by the succeeding Parliament summoned by the king,
which however qualified the confirmation of them, by declaring that ' the manner of the
assembling, enforced by the difficulties and exigencies which then lay upon the nation, is
not to be drawn into example.' In the same manner, the first Act of the reign of
William and Mary declared the Convention of Lords and Commons to be the two houses

§§ 62-63.]

THE PARLIAMENT. 407

of Parliament, as if they had been summoned according to the usual form ; and the
-ucceeding Parliament recognized the legality of their Acts." (May, Pari. Prac., 10th
.1, p. 38.)

§ 62. "Prorogue."

Prorogation is the continuance of the Parliament from one session to another, as an
adjournment is a continuance of the session from day to day. Prorogation puts an end
to the session, and quashes any Bills which are begun and not perfected. According to
the practice of the Imperii! Parliament, such Bills must be resumed de novo (if at all)
in a subsequent session, as if they had not previously been introduced. (See Tomlins,
Vol. 11. Parliament, \-iii.; May, Pari. Prac. 10th ed. p. 43.) The Houses may, however,
by standing orders provide for the resumption of such Bills, upon motion, at the stage
at which they were interrupted. (See, for instance. Standing Orders, 200-2, of Legis-
lative Council, New South Wales ; Standing Orders, 295-7, of Legislative Assembly,
New South Wales. ) A prorogation may be effected by commission, but the usual course
is by proclamation.

" Both Houses are necessarily prorogued at the same time, it not being a prorogation
of the House of Lords or Commons, but of the Parliament. The session is never
understood to be at an end until a prorogation ; though, unless some Act be passed or
some judgment given in Parliament, it is in truth no session at alL" (Tomlins, vol. 11,
Parliament. )

"All orders of Parliament determine by prorogation, and one taken by order of the
Parliament after their prorogation, may be discharged on an habeas corpxis, as well as
after a dissolution ; but it was long since determined that the dissolution of a Parliament
did not alter the state of impeachments brought up by the Commons in a preceding
Parliament." (Id.)

" The Crown may bring the session to an end by a prorogation, which has the effect
of quashing all proceedings, except impeachments and appeals before the House of Lords.
Parliament is prorogued by the sovereign in person in the House of Lords, or by
commission ; it may also be prorogued b\' proclamation from the day for which it was
summoned, or to which it had been previously prorogued." (.Encyclopedia, Laws of
England IX. p. 401.)

§ 63. "Dissolve."

This section confers upon the Grovemor-Greneral the power to dissolve the House of
Representatives before the expiration of the three years for which it is elected. By
section 57 the Governor-General, in the circumstances therein specified, is further
authorized to dissolve the Senate and the House of Representatives simultaneously.

Graxtixg a Dissolctiox. — It is the prerogative of the Crown to dissolve an
existing Parliament subject only to the constitutional rule that this great power,
described by Sir Charles G. Duffy as "the most popular of all the prerogatives," and one
of immense utility, can be exercised only on the advice and approval of a Minister of
State directly responsible to the national chamber. The granting of a dissolution is, of
course, an executive act, the ministerial responsibility for which can be easily established.
The following have been suggested as the leading considerations which should reasonably
support and justify ministerial advice in favour of a dissolution (Todd, 2nd ed. p. 771):
(i.) When a vote of "no confidence" is carried against a government which

has not already appealed to the country,
(ii.) When there are reasonable grounds to believe that an adverse vote against
the government does not represent the opinions and wishes of the coimtry,
and would be reversed by a new Parliament,
(iii.) When the existing Parliament was elected under the auspices of the

opponents of the government.

(iv.) When the majoritj- against a government is so small as to make it

improbable that a strong government can be formed from the opposition.

Refusixg a Dissolctiox. —The refusal of a dissolution, recommended by a Minister

of State, is not an executive act ; it is a refusal to do an executive act. It seems to be

408 COMMENTARIES ON THE CONSTITUTION. [Sec. 5.

generally admitted bj' constitutional authorities that the Crown has still an undoubted
constitutional right to withhold its consent to the application of a minister for permission
to dissolve Parliament. The sovereign, it is said, ought not to be a mere passive
instrument in the hands of ministers ; it is not merely* the right but the dutj' of the
sovereign to exercise his judgment on the adWce so tendered.

" And though, by refusing to act upon that advice, he incurs a serious responsi-
bility, if they should in the end prove, to be supported bj' public opinion, there is,
perhaps, no case in which this respousibilitj' may be more safely and more usefully
incurred than when ministers have asked to be allowed to appeal to the people from a
decision pronounced against them by the House of Commons. For they might prefer
this request when there was no probability of the vote of the House being reversed by
the nation, and when the measure would be injurious to the public interests. In such a
case, the sovereign ought clearly to refuse to allow a dissolution." (Todd, Pari. Govt, in
England. II., 2nd ed., 510.)

" The power of dissolution is. of all the trusts vested in His Majesty, the most
critical and delicate." (Burke, Works, III., p. 525.)

" It is a great instrument in the hands of the Crown, and it would have a tendency
to blunt the instrument if it were emploj-ed without grave necessity." (Sir Robert Peel,
Speeches, IV., p. 710.)

" It seems to be generally supposed that a defeated minister is entitled, if he think
fit, at once to 'appeal to the country.' The concurrence of the Crown is assumed as a
matter of course. But although ministers may advise a dissolution, the King is by no
means bound to follow that advice. The refusal to grant the dissolution would indeed
be a sufficient ground for tlie resignation of ministers ; but, on the other hand, com-
pliance with the I'equest can only be meant to assist them against the hostility of Parlia-
ment. Such assistance the King cannot and ought not indiscriminately to give. The
question therefore arises in what circumstances, according to modern constitutional
usage, ought the prerogative of dissolving Parliament to be exercised." (Hearn's Gov.
of Kng., p. 162.)

" Except where some organic change has been effected in the construction of Par-
liament, the only reason which can induce the King prematurely to dismiss his Great
Council must be either that the advice that he obtains from it is unacceptable to him, or
that he can obtain no definite and decided ad\-ice, or that the two portions of his Council
are discordant. Jn other Mords. either there is a difference of opinion between the
Crown and the House of Commons on the subject of some ministry' ; or the different
parties in the Commons are so equally di\ided that business is obstructed ; or the two
Houses cannot on some material question come to an agreement." (Hearn's Gov. of
Eng., p. 163 4.)

" If the minister to whom a dissolution has been refused is not willing to accept the
decision of the sovereign, it is his duty to resign. He must then be repleuied bj- another
minister, who is prepared to accept full responsibilitj- for the act of the sovereign, and
for its consequences, in the judgment of Parliament." (Todd, Pari. Govt, in Eng., vol.
ii., p. 408.)

" It is evident, therefore, that the sovereign — when, in the exercise of this preroga-
tive, a dissolution is either granted or refused — must be sustained and justified by the
agreement of a responsible minister. If this be constitutionally necessary, as respects
the sovereign, it is doublj' so in the case of a (Governor. For the sovereign is not
personally responsible to any earthly authority' ; but a Governor is directly responsible
to the Crown for every act of his administration." (Todd, Pari. Govt, in the Col., 2nd
ed., p. 761.)

" As the representative of the Crown in the dominion, colony, or province, over
which he is commissioned to preside, the power of dissolution rests absolutely and
exclusivel}' with the Governor or Lieutenant-Governor for the time being. He is
personally responsible to the Crown for the lawful exercise of this prerogative, but he is
likewise tx)und to take into account the welfare of the people, being unable to divest
himself of a grave moral responsibility towards the colony he is commissioned to govern. "
(Todd, id., p. 800.)

" Whilst this prerogative, as all others in our constitutional sj^stem, can only be
administered upon the aSvice of counsellors prepared to asssume full responsibilitj- for
the Governor's decision, the Governor must be himself the judge of the necessity for a
dissolution. The ' constitutional discretion ' of the Governor should be invoked in
respect to every case wherein a dissolution may be advised or requested bj- his ministers ;
and his judgment ought not to be fettered, or his discretion disputed, by inferences
drawn from previous precedents, when he decides that a proposed dissolution is un-
necessary or undesirable." (Todd, id., p. 800.)

§§ 6a-64.]

THE PARLIAMENT. 409

" It ia the duty of a Governor to consider the question of a dissolntion of the
parliament or legislature solely in reference to the general interests of the people and
not from a party standpoint. He is under no obligation to sustain the party in power
if he believes that the accession to office of their opponents would be more beneficial to
the public at large. He is, therefore, justifie*! in withholding a dissolntion re«|ue3ted by
his ministers, when he is of opinion that it was aske<l for merely to strengthen a parti-
cular party, and not with a view to ascertain the public sentiment upon disputed
questions of public policy. These considerations would always warrant a governor in
withholding his consent to a dissolution applied for, under such circumstances, by a
ministry that had been condemned by a vote of the popular chamber. If he believes
that a strong and efficient administration c-ould be formed that would command the
confiilenc-e of an existing Assembly, he is free to make trial thereof instead of c-omply-
ing with the retjuest of his ministers to grant them a dissolution as an alternative to
their enforced resignation of office. On the other hand, he may at his discretion grant
a dissolution to a ministry defeated in Parliament and desirous of appealing to the
nstituencies, notwithstanding that one or both branches of the legislature should
: LQionstrate against the proposed appeal, if only he is persuaded tiiat it would be for the
public advantage that the appeal should be allowed." (Todd, id., p. 801.)

" Parliament is usually dissolvetl by proclamation under the great seal, after having
been proroguetl to a certain day. This proclamation is issued by the Queen, with the
advice of her Privy Council ; and announces that the Queen has given order to the
Lord Chancellor of Tireat Britain and the Lord Chancellor of Ireland to issue out writs
in due form, and according to law, for calling a new Parliament ; and that the writs are
to be returnable in due course of law." (May's Pari. Prac, 10th ed., p. 46.)

" On the 17th July, 1837, Parliament was prorogued and dissolved on the same day.
' )n the 23rd July, 1847, the Queen, in proroguing Parliament, announced her intention
immediately to dissolve it ; and it was accordingly dissolved by proclamation on the
same day. and the writs were despatched by that evening's post ; and this course is now
the ordinary, but not the invariable practice." (May's Pari. Prac, lOth ed., p. 47.)

§ 64. '* The Parliament shall be Summoned."

The first Federal Parliament will hare to be elected and summoned to meet for the
despatch of business not later than six months after the establishment of the Common-
wealth. This part of the section refers to two important events — (1) the establishment
of the Commonwealth, and (2) the summoning of the first Parliament. Several inter-
vening events are assumed to have taken place ; such as the appointment by the Governor-
General of Ministers of State to c-onstitute the first administration of the Commoo-
wealth, and the election of the first Parliament. A Federal Ministry will have to be
appointed immediately upon the establishment of the Commonwealth, for on the accom.
plishment of the union the departments of Customs and Excise, in the several States, are
b\ the terms of the Constitution transferred to the Commonwealth, and the Executive
Government will be at once required for the purpose of administering those departments
as well as for the purpose of supervising the issue of writs, appointing returning officers,
and generally making arrangements necessary for the election of members of the House
of Representatives. The writs for the election of Senators are issued by the Governors
of States. The various successive steps and stages in the inaogoration of the new
regime may be here recapitulated for general survey —

Tbe Passi>-g of the Act. (9th July, 1900.)

The Passing of Electoral Laws bv the Colosial Parixamexts.

The Issue of the Qiteen-'s Proclamation (17th September, 1900).

The Appointmest of the Goverxor-Geseral,

The Arrival of the Governor-General in Australia.

The Establishment of the Commonwealth and the Commencement of the
Operation of the Constitution on the day appointed in the Queen's
Proclamation (1st January, 1901).

The Transfer of the Depart>ients of Customs axd Excise to the Common-
wealth (1st January, 1901).

The Appointment of the First Federal Meostrv.

The Issue by the Governor-General of Writs for the Election of
Members of the House of Representatives.

410 COMMENTARIES ON THE CONSTITUTION. [Sec. 6.

The Issue by the Governors of States of Writs for the Election of

Senators.
The Election of Representatives.
The Election of Senators.
The Return of the Writs.
The Summoning of the New Parliament.
The Meeting of the New Parliament not later than Six Months after

the establishment of the Commonwealth.

§ 65. " Day Appointed for the Return of the Writs."

The provision of this Section, that after any general election the Parliament shall
be summoned to meet not later than thirty days " after the daj'^ appointed for the return
of writs" w^ould seem to refer to the day appointed by the Governor-General in Council
nnder section 32, under which writs are issued for general elections of members of the
House of Representatives ; such writs would of course appoint the day upon which they
are required to be returned. The passage in this section, now under consideration, was
taken from a paragraph in ch. I., pt. III., sec. 41 of the Draft Bill of 1891, which
under the heading of "Duration of the House of Representatives," provided that
" The Parliament shall be called together not later than thirty daj's after the day
appointed for the return of the writs for the general election." From this it appears
" that the day appointed '' means the time specified for the return of the writs issued by
the Federal Government for the election of the House of Representatives ; and that it
has no reference to the times which maj^ be appointed by the Governors of States for the
return of writs issued by them for the election of Senators for their respective States.
It does not seem to suggest that the Governor-General in Council could limit the time
within which the election of Senators would have to be held, and their names certified
by the (governors of States. The Governor-General in Council could issue no mandate to
the Governors of States on this subject. On the conti'ary, the State authorities can fix
their own times for the election of senators, without reference to the Federal Govern-
ment (sec. 9). Should any of the States omit to provide for their representation in the
Senate, that body could proceed to the despatch of business in the absence of senators
from such State (sec. 11), provided that there was a quorum present, consisting of at
least one-third of the whole number of the senators (sec. 22).

Yearly Session of Parliament.

6. There shall be a session of the Parliament once at
least in every year®^, so that twelve months shall not intervene
between the last sitting of the Parliament in one session and
its first sittinor in the next session.

Canada.— There shall be a session of the Parliament of Canada once at least in every year, so
that twelve months shall not intervene between the last sittinj^ of the Parliament in one
session and its first sitting in the next session.— B.N. A. Act, 1867, s. 20.

Historical Note. — This provision, which occurs in the Constitutions of all the

Australian colonies, was contained, verbatim, in the Commonwealth Bill of 1891, and

was adopted by the Convention of 1897-8, without debate or amendment.

§ 66. " Once at Least in Every Year."

The annual meeting of the Federal Parliament is secured by this section of the Con^
stitution, in accordance with numerous colonial precedents. In the United KingdomJ
however, the Queen is only bound by statute to issue writs within three years after the'
expiration of a Parliament. The guarantee of an annual session is the necessity of pro-
viding money for the public service.

§ 66.]

THE SENATE. 411

" The annual meeting of Parliament, now placed beyond the power of the Crown by
a system of finance, rather than by distinct enactment, had, in fact, been the law of
England from ver^' earl3- times. By the statute 4 Edward III , c. 14, ' it is accorded
that Parliament shall be holden every year once, [and] [or] more often if need be.' And
again, in the 36 Edw. III., c 10, it was granted 'for redress of divers mischiefs and
grievances which dailj' happen [a Parliament shall be holden or] be the Parliament holden
crery ytar, as another time was ordained by statute.' It is well known that by
extending the words, ' if need be,' to the whole sentence instead of to the last part only,
to which they are obviously limited, the kings of England constantly disregarded these
laws. It is impossible, however, for any words to be more distinct than those of the 36
Edward III., and it is plain from many records that they were rightly understood at the
time. In the 50 Edward III., the Commons petitioned the king to establish, by statute,
that a Parliament should be held each year ; to which the king replied, ' In regard to a
Parliament each year, there art statutes and ordinances made, which should be duly
maintained and kept.' So also to a similar petition in the 1 Richard II , it was
answered, '.So far as relates to the holding of Parliament each year, let the statutes
thereupon be kept and observed ; and as for the place of meeting, the king will therein
do his pleasure.' And in the following year the king declared that he had summoned
Parliament, because at the prayer of the Lords and Commons it had been ordained and
agreed that Parliament should be held each jear. In the preamble of the Act 16 Chas.
I., c. 1, it was also distinctly affirmed, that 'by the laws and statutes of this realm,
Parliament ought to be holden at least once every year for the redress of grievances :
but the appointment of the time and place of the holding thereof hath always Ijelonged,
as it ought, to his majesty and his royal progenitors.' Yet by the 16 Chas. II., c. 1, a
recognition of these ancient laws was withheld : for the Act of Charles I. was repealed
as ■ derogatory of his majesty's just rights and prerogative ' ; and the statutes of Edward
III were incorrectly construed to signify no more than that ' Parliaments are to be held
ver\' often.' All these statutes, however, were repealed, by implication, by this Act,
and also by the 6 and 7 Will, and Mary, e. 2, which declares and enacts ' that from
henceforth Parliament shall be holden once in three years at the least.' " (May's Pari.
Prac, pp. 38-40.)

PART II.— THE SENATE.
The Senate.

7. The Senate^" shall be composed of senators for each
State^, directly chosen by the people of the State, voting,
until the Parliament otherwise provides, as one electorate®.

But until the Parliament of the Commonwealth other-
wise provides, the Parliament of the State of Queensland™,
if that State be an Original State'\ may make laws dividing
the State into divisions and determining the number of
senators to be chosen for each division, and in the absence of
such provision the State shall be one electorate.

Until the Parliament otherwise provides there shall be
six senators for each Original State. The Parliament may
make laws increasing or diminishing the number of senators
for each State, but so that equal representation of the several
Original States shall be maintained"' and that no Original
State shall have less than six senators.

The senators shall be chosen for a term of six vears, and

412 COMMENTARIES ON THE CONSTITUTION. [Sec. 7.

the names of the senators chosen for each State shall be
certified by the Governor to the Governor-General.

United States. — The Senate of the United States shall be composed of two Senators from
each State, chosen by the Lejjislature thereof. — Const., Art. I., sec. 3, sub-sec. 1.

Canada.— The Senate shall, subject to the provisions of this Act, consist of seventy-two
members, who shall be styled Senators.— B.N. A. Act, 1867, sec. 21.

In relation to the Constitution of the Senate, Canada shall be deemed to consist of
Three Divisions : —

1. Ontario ;

2. Quebec;

3. The Maritime Provinces, Nova Scotia and New Brunswick ; which Three
Divisions shall (subject to the provisions of this Act) be equally represented in the
Senate as follows : — Ontario bj' twenty-four Senators ; Quebec by twenty-four Senators ;
and the Maritime Provinces by twenty-four Senators, twelve thereof representing
Nova Scotia, and twelve thereof representing New Brunswick.— id., sec. 22.

The Governor-General shall from time to time, in the Queen's name, by instrument
under the Great Seal of Can.ida, summon qualified persons to the Senate ; and, subject
to the provisions of this Act, every person so summoned shall become and be a
member of the Senate and a Senator — Id , sec. 24.

Such persons shall be first summoned to the Senate as the Queen by Warrant
under Her Majesty's Koyal Sign Manual thinks fit to approve, and their names shall be
inserted in the Queen's Proclamation of Union. — Id., sec. 25.

If at any time on the recommendation of the Governor-General the Queen thinks
fit to direct that three or six members be added to the Senate, the Governor-General
may by summons to three or six qualified persons (as the case may be), representing
equally the Three Divisions of Canada, add to the Senate accordingly. — Id., sec. 26.

In ease of such addition being at any time made, the Governor-General shall not
summon any person to the Senate, except on a further like direction by the Queen on
the like recommendation, until each of the Three Divisions of Canada is represented
by twenty-four Senators, and no more. — Id., sec. 27.

The number of Senators shall not at any time exceed seventy-light. — Id., sec. 28.

A Senator shall, subject to the provisions of this Act, hold his place in the Senate
for life.— /d., sec. 29.

Historical Note. — Clause 9, Chap. I., of the Commonwealth Bill of 1891 was as

follows : —

' ' The Senate shall be composed of eight members for each State, directly chosen by
the Houses of the Parliament of the several States during a session thereof, and each
senator shall have one vote. The senators shall be chosen for a term of six j'ears. , The
names of the senators chosen in each State shall be certified by the Governor to the
Governor-General. "

In Committee, the debate opened with a warning by Mr. Wrixon that, if the
Senate were given large powers, the clause must be reconsidered ; "it will never do to
give equal representation to the smallest, as well as to the largest States, if the Senate
is to be a large and determined power in the Constitution." An amendment by Mr.
Munro, to substitute "six" for " eight," was negatived. Mr. Kingston proposed to
omit the words " directly chosen bj' the Houses," &c., so as to leave each State to deter-
mine the mode of election. The arguments in favour of a uniform mode of election,
however, were too strong ; and the time was not j'et ripe for the plan of direct election.
Mr. Kingston's amendment was negatived by 34 votes to 6. (Conv. Deb., Syd. [1891],
pp. 588-99.)

At the Adelaide session, the provision was introduced as follows (part of clause 9) : —

"1 he Senate shall be composed of six senators for each State, and each senator
shall have one vote.

" The senators shall be directly chosen by the people of the State as one electorate.

" The senators shall be chosen for a term of six years, and the names of the
senators chosen by each State shall be certified by the Governor to the Governor-
General.

•'The Parliament shall have power, from time to time, to increase or diminish the
number of senators for each State, but so that the equal representation of the several
States shall be maintained and that no State shall have less than six senators."

The discussions upon this clause at the Adelaide and Sydney sessions may be most
conveniently referred to under separate subject-headings.

HqucU Bepresentation. — At the Adelaide session, Mr. Higgins proposed that repre-
sentation in the Senate should be according to a sliding scale, intermediate between

§66] THE SENATE. 413

equal and proportionate representation. This was negatived by 32 votes to 5. (Conv.
Deb , Adel., pp. 641-68, 1190.) At the Sj'dney session, a suggestion by both Houses of
the New South Wales Parh'ament, providing for proportionate representation, with a
minimum of three senators for each State, and a minimum total number of 40 senators,
was negatived by 41 votes to 5. (Conv. Deb., Syd. [1897], pp. 256-355.) In the re-draft
of the clause proposed at Sydney, doubts as to the construction of the clause, read with the
clause providing for the representation of new States (sec. 121), were removed by restrict-
ing the right of equal representation to "Original States." (See Conv, Deb., Syd.
[1897]. pp. 257-8.) The same principle was aflSrmed by a suggestion of the Legislative
Assembly of Victoria, declaring that the pro^-ision for the maintenance of equal repre-
sentation should not apply to new States admitted on other terms. This was opposed
by those who claimed that equal representation w as an essential principle of Federation,
but was supported bj- those who defended equal representation as a necessary compro-
mise. It was agreed to by 25 votes to 20. (Conv. Deb., Syd. [1897], pp. 394-415.)

Direct Election by People. — At the Adelaide session, Mr. Dobson protested against
the direct election of senators on the same suffi^ge as the House of Representatives, but
moved no amendment. (Conv. Deb., Adel., pp. 670-2.) At the Sj'dney session. Sir
-Tohn Forrest announced his preference for election by the Legislatures. (Conv. Deb.,
.Syd. [1897], p. 361.)

As one Electorate. — At the Adelaide session, Mr. Lyne criticized the policy of
making each State one electorate, and advocated single-member c-onstituencies (Conv.
Deb., AdeL, pp. 668 9.) At the Sydney session, suggestions by the Legislative Assembly
of New South Wales, and by both Houses of all the other colonies, to omit the words " as
one electorate,'' were discussed. Sir John Forrest suggested three electorates, seeing
that three members for each State were to retire periodically. Mr. Fraser suggested six
electorates. After debate, the words "until the Parliament otherwise provides" were
in.serted by 29 votes to 19; and the words "as one electorate" were retained by 29
votes to 18. (Conv. Deb., Syd. [1897], pp. 360-91.)

Term of Office.— At the Adelaide session, Mr. Higgins proposed to reduce the
senators' term of office from six to four years. This was negatived. (Conv. Deb. , AdeL ,
p. 670.)

Certifying Xameji. — At the Sydney session, a suggestion by the Legislative Assembly
of Victoria to omit this provision — on the ground that the States should have nothing to
do with the electoral machinery of the Senate — was negatived. (Conv. Deb., Syd.
[1897], pp. 391-4.)

At the Sydney session, the clause was re-drafted in the following form : —

'• The Senate shall be composed of senators for each State, directlj' chosen by the
people of the State, voting, until the Parliament otherwise determines, as one electorate,
and each senator shall have one vote. Until the Parliament otherwise provides, there
shall be six senators for each Original State. The Parliament may, from time to time,
increase or diminish the number of senators for each State, but so that equal representa-
tion of the several Original States shall be maintained, and that no Original State shall
have less than six senators. The Senators shall be chosen for a term of six years, and
the names of the senators chosen by each State shall Ije certilied by the Governor to the
Governor-General. "

At the Melbourne session, before the first report, the words " and each Senator
shall have one vote " were transferred to another clause (sec. 23) ; and the words
"chosen for each State" were substituted for "chosen by each State." After the
second report, Mr. Isaacs proposed to allow each State, provisionally, to divide the
State into electorates. This was negatived by 27 votes to 16. (Conv. Deb., Melb., pp.
1922-8. ) Verbal amendments were made after the fourth report.

At the Premiers' Conference, 1899, the paragraph enabling the Parliament of
Queensland, in the absence of federal legislation, to divide the State into electoral .
divisions, was agreed to.

414 COMMENTARIES ON THE CONSTITUTION. [Sec. 7.

§ 67. " The Senate."

The Senate is one of the most conspicuous, and unquestionably the most important,
of all the federal features of the Constitution, lusing the word federal in the sense of
linJsing together and uniting a number of co-equal political communities, under a common
system of government. The Senate is not merely a branch of a bicameral Parliament ;
it is not merely a second chamber of revision and review representing the sober second
thought of the nation, such as the House of Lords is supposed to be ; it is that, but
something more than that. It is the chamber in which the States, considered as
separate entities, and corporate parts of the Commonwealth, are represented. They are
so represented for the purpose of enabling them to maintain and protect their consti-
tutional rights against attempted invasions, and to give them every facility for the
advocacy of their peculiar and special interests, as well as for the ventilation and con-
sideration of their grievances. It is not sufKcient that they should have a Federal High
Court to appeal to for the review of federal legislation which they may consider to be in
excess of the jurisdiction of the Federal Parliament. In addition to the legal remedy it
was deemed advisable that Original States at least should be endowed with a parity of
representation in one chamber of the Parliament for the purpose of enabling them
effectively to resist, in the legislative stage, proposals threatening to invade and violate
the domain of rights reserved tsO the States.

That the Senate is the Council of States in the Federal Parliament is proved by the
words of this section. There are to be six senators for each Original State. That the
States, and not the people, are actually represented in the Senate is shown by the
requirement that the "equal representation of the several Original States shall be main-
tained." Equality of representation, it is argued, is a natural corollary of State repre-
sentation, because the colonies were, prior to federation, politically equal ; equal in con-
stitutional power and status, although not necessarily equal in territory or population.-
Territory and population aiford no absolute test of political statvxs. The true test is the
power to govern. Crown colonies would not have been admitted members of the Federal
Partnership, on terms of equality with the responsible-government colonies. Further, it
was one of the terms of the federal bargain that, in consideration of the transfer of
general powers to the Commonwealth, each colony represented in the Convention shoidd,
on becoming a State, maintain its original relative equality and individuality unim-
paired. That could only be done by equality of representation in the Council of States.
Without the adoption of that pi-inciple the federation of the Australian colonies would
not have been accomplished.

After prolonged and exhaustive debates the Federal Convention, bj' decisive
majorities, accepted the principle of equal representation of Original States in the
Senate, as a positive and indispensable condition of the Federal scheme. The question
had to be considered, not so much from its logical and symmetrical aspect — not so much
as a principle capable of satisfactory dialectical analysis and vindication — but rather as
one of the terms of the Federal compact, which is based on compromise. The problem
to be solved in the case of the Australian colonies desiring to federate was similar to
that which had to be solved by the framers of the American Constitution ; it was — how
to reconcile the creation of a strong national government with the claims and suscep-
tibilities of separate, and, in their own eyes, (^ifasi-sovereign States. The solution of
the problem was found in a Parliament partly national and partly Federal. The
national part of the Parliament is the House of Hopresentatives— the organ of the
nation. The Federal part of the Parliament is the Senate— the orjan of the States, the
visible representative of the continuitj', independence, and reserved autonomy of the
States, linking them together as integral parts of the Federal union. As (7Ha.si-sovereign
entities, it was contended that they were entitled to equal representation, because they
weie constitutionally and politically equal; inequality in the number of people within
their jurisdiction did not constitute inequality in their gwasi-sovereignty ; in sovereignty
there were no degrees. This was the only logical ground suggested. Whether it was

§67.]

THE SENATE. 415

sound or unsound is not so material as the fact that a majority of the Australian com-
munities affirmed that they would not agree to transfer a part of their political rights
aud powers to a central Legislature except on the condition that, as States, they should
be equally represented in one of the Chambers of that Legislature.

The functions and basis of the Senate are fully explained and vindicated in the
annexed quotations from standard authorities and extracts from speeches delivered in
the Federal Convention. The fact that equal State representation cannot be taken
away, even (as may be contended) by an amendment of the Constitution, fully warrants
the presentation of the case for the Senate in the language of some of its strongest
advocates.

" Whatever may now be thought of the reasoning of the contending parties, no per-
son who possesses a sincere love of country and wishes for tlie permanent union of the
States can doubt that the compromise actually made was well founded in policy, and
may now be fully vindicated upon the highest principles of political wisdom and the
true nature of the government which was intended to be established. It may not be
unprofitable to review a few of the grounds upon which this opinion is hazarded. In
the first place, the very structure of the general government contemplated one partly
federal and partly national. It not only recognized the existence of State governments,
but perpetuated them, leaving them in the enjoj-ment of a large portion of the rights of
sovereignty, and giving to the general government a few powers, and those only which
were necessary for national purposes. The general government was, therefore, upon the
acknowledged basis, one of limited and circumscribed powers ; the States were to possess
the residuary- powers. Admitting, then, that it is right, among a people thoroughly
incorporated into one nation, that everj' district of territory ought to have a propor-
tional share of the government ; and that among independent States, bound together by
a simple league, there ought, on the other hand, to be an equal share in the common
councils, whatever might be their relative size or strength (both of which propositions
are not easily controverted) ; it would follow that a compound republic, partaking of the
character of each, ought to be founded on a mixture of proportional and equal represen-
tation. The legislative power, being that which is predominant in all governments,
ought to be above all of this character ; because there can be no security for the general
government or the State governments without an adequate representation, and an
adequate check of each in the functions of legislation. Whatever basis, therefore, is
assumed for one branch of the legislature, the antagonist basis should be assumed for <
the other. If the House is to be proportional to the relative size, and wealth, and popu- '
lation of the States, the Senate should be fixed upon an absolute equality, as the repre- '
sentative of State sovereignty. There is so much reason and justice and security in such a
course than it can with difficulty be overlooked by those who sincere!}' consult the public
good, without being biassed by the interests or prejudices of their peculiar local position.
The equal vote allowed in the Senate is, in this view, at once a constitutional recognition
of the sovereignty remaining in the States, and an instrument for the preservation of it. \
It guards them against (what they meant to resist as improper) a consolidation of the"
States into one simple republic ; and, on the other hand, the weight of the other branch
counterbalances an undue preponderance of State interests tending to disunion. Another
and most important advantage arising from this ingredient is the great diiFerence which
it creates in the elements of the two branches of the legislature." (Story, Comm. on the
Const. §§ 697-9.)

" The state legislatures ought to have some means of defending themselves against
encroachments of the national government. And what better means can we provide
than to make them a constituent part of the national establishment ? No doubt there
is danger on both sides ; but we have only seen the evils arising on the side ot the state
governments. Those on the other side remain to be displayed ; for congress had not
power to carry their acts into execution, as the national government will now have."
(Geo. Mason, in the Philadelphia Convention, 7th June, 1787.)

"The Senate of the L^nited States is the only upper legislative chamber in the
world that has the strength to resist the will of the electorate for a considerable period
of time. It represents the Federal principle in the government, and, besides its legis-
lative, has important executive functions." (Foster, Comm. I. p. 457.)

" The name of Senate is taken from a body which ruled ancient Rome ; and its pro-
totj-pe was the body of senior warriors M'lth whom the king or chieftain held his councils
of war ; but in its legislative functions it resembles the Roman tribunate more closely
than its name-father, and its immediate model was the House of Lords." (Id. p 459 )

" We ma\- imagine very easih' in a moment's reflection what would have been the
condition of this country at this moment had the Senate of the United States been con-
stituted on a different principle. If the size and populations of the several States had

-tie COMMENTARIES ON THE CONSTITUTION. [Sec. 7.

been the test of representation in the Senate of the United States, I think it is not too
much to say, in sober minded truth, that this Republic wouki not have endured until
now. Many and many have been the times when, if the right of the Senators of each
State to resist and defeat the current of popular passion and prejudice which arises
sometimes in the action of the popular body, the House of Representatives, had failed to
exert itself, as it would have failed if the Senate had been constituted as the national
House of Representatives, discord and revolution would almost certainly have caused the
dismemberment of the Union." (Senator George F. Edmunds, cited in Foster, Comm.
vol. I. p. 4b7. )

" Although there has been no need of its interposition to pi'otect the small from any
encroachment bj^ the larger States, until the Civil War the Senate was more con-
spicuously the guardian of State rights in general. Their advocates maintained the
position that the body was an assembly of ambassadors from sovereign States. During
Washington's administration, North C'arolina directed her senators to execute a deed
ceding land to the United States : Senator Tazewell, of Virginia, declined Jackson's
offer of a place in the cabinet, and said : — ' Having been elected a senator, I would as
soon think of taking a place under George IV. if I was sent as minister to his court, as I
would to take a place in the cabinet.' Insistence has fre([uently been made upon the
right of State legislatures to instruct their senators in Congress. ' In 1808, John Quincy
Adams resigned after voting for the embargo in opposition to the wislies of his con-
stituents. A senator, in 1828, after arguing against the Tariff of Abominations, said,
'as the organ of the State of Kentucky he felt himself bound to surrender his individual
opinion, and express the opinion of his State.' John Tyler, in 1836, before he was
President, resigned his place in the Senate because the Virginia legislature had instructed
him to vote in favour of the expunging resolution, which he could not conscientiously
approve. These doctrines are now abandoned The Senators consider themselves as
members of an ordinary legislative bod3'. They pay no more attention to the instrixctions
of State legislatures than do members of the House ; and in fact, since their terms are
longer, they are more inclined to disobey them." (Foster, Comm. I. pp. 494-6.)

"A survey of its position throughout the history of the United States shows that
the Senate has maintained, almost witliout interruption, the respect of the American
people, and that it has vindicated the wisdom of its creation ; while State senates are
usually more despised than State houses of assembly. It has been shorn of but a single
power, that to originate general appropriation bills, which the House has, by their con-
tinuous rejection when sent there, refused to permit it to exercise successfully, although
the Senate has more than once recorded a protest asserting its prerogative ; but in
practice, through its power of amendment, the loss is rather nominal than real." {Id.
496.
1^'^ " What I mean is an upper chamber, call it what you may, which shall have within
itself the only conservatism possible in a democracy— the conservatism of maturity of
judgment, of distinction of service, of length of experience, and weight of character —
which are the only qualities we can expect to collect and bring into one body in a com-
munity young and inexperienced as Australia." (Sir Henry Parkes, in the Federal Con-
vention, 1891 ; Convention Debates, p. 26.)

"If the Australian people desired unity, it would, perhaps, be a question open to
discussion whether the Senate should or should not be an elected body, but when they
desire Union only, it is essential that there should be in the Federal (lovernment some
body representing the Provinces as such ; some body sufficient!}' stiong, from the
nature of its constitution, to uphold the rights of the Provinces whom it represents.
What other body than an elected Senate can be suggested ? It is no answer to point
out objections to an elected Senate, uidess you are prepared to suggest some other mode
of appointment which is open to less objections. If there is to be some outward and
visible sign of recognition of State rights, if the ' natural' desire of the small States is
to be given effect to, how can it be better effected than by equal representation in the
Senate? Their ' desires ' will have to be ascertained, and consent obtained before cany
Union can be formed, and we must never forget the saying of Solon, who, when asked
if he had given the Athenians the best possible laws, replied, ' I have given them the best
they can bear. ' As Mr. Bagehot himself remarks, a Federal Senate, a second House
which represents State unity, has this advantage : it embodies a feeling at the root of
society — a feeling which is older tlian complicated politics, which is stronger a thousand
times over than common political feeling ; the local feeling, ' my shirt,' says the Swiss
State patriot, ' is nearer to me than my coat.' An elected Senate in which each State
is equally represented is a guarantee that no law will be passed, not only without/
the consent of the majority of the people, but also without the consent of a
majority of the States. By the election of Senators by each State for each State j'ou
/ insure the respect and attachment of the State as a whole, not only for the particular
Senators they have elected, but also for the whole federal constitution of whicii they
form a part." (Sir R. C. Baker ; Manual for use of Convention of 1891, p. 61.)

•§67.]

THE SENATE. 417

•'AH Federal Governments have their Senates or Councils of the States, and in all
of them the Senate is based upon the principle that in a Federation the States must
be represented as well as the people. The principle, if not as old as the hills, goes as far
back as the Achaean League, where each city, independent of its size, had one vote.
And the reason why the principle is universal is not far to see. It is probable that
no small States would care to link their fortunes with large States if they were
liable to be out-voted and ignored by virtue of the superior population of their
greater brethren. Certainly the American States would never have set aside their
loose confederation, unworkable as it was, if it had not been for this method of alle\nat-
ing their fears, and of extinguishing their jealousies. In their Senate each State, the
great and the pigmy, is equal. We shall undoubtedly to a large extent have to recognize
this principle here." (Mr. Howard Willoughby, Australian Federation [1891] p oS.)

*' The individualism of the States after Federation is of as much interest to each
eolony as the free exercise of national powers is essential to that aggregation of
colonies which we express in the term Federation. If the one trenches upon the other,
then, so far as the provinces assert their individuality overmuch, the fear is an ap-
proach to a mere loose confederation, not a true Federation. The fear on the other
hand is, if we give the power to encroach— that is if we represent the federated
people onh', and not the States in their entities, in our Federation — then day by day
you will iind the power to make this encroachment will be so gladly availed of that, day
by day and year by year, the both' called the Federation will more nearly approach the
unified or 'unitarian' system of government. We cannot adopt any form of govern-
ment the tendency of which will be, as time goes on, to turn the constitution to-
wards unification on the one hand, and towards a loose confederacy on the other.
We must observe that principle, or else we do not observe the charge laid upon us by
the enabling Act. which lays on us the duty to frame a 'Federal' Constitution
under the Crown. So, therefore, I take it there must be two Houses of Parliament,
and in one of these Houses the principle of nationhood, and the power and scope of
the nation, as constituted and welded together into one by the act of Federation,
will be expressed in the National Assembly, or House of Representatives, and in the
other Chamber, whether it is called the Council of the States, the States Assembly, or
the Senate, must be found not the ordinary checks of the Upper House, because such
a Chamber will not be constituted for the purposes of an Upper House ; but you must
take all pains, not only to have a Parliament consisting of two Chambers, but to have
it constituted in those two Chambers in such a way as to have the basic principle of
Federation conserved in that Chamber which is representative of the rights of the
iStates ; that is that each law of the Federation should have the assent of the States as
well as of the federated people. If you must have two Chambers in your Federation,
it is one consequence of the Federation that the Chamber that has in its charge the
defence of State interests will also have in its hands powers in most matters co-
ordinate with the other House." (Mr. Edmund Barton, Conv. Deb., Adel., pp. 21-23.)
'• In all four legislatures [England, Germany, France and the United States] the
distribution of the representation in the upper houses is made with but little regard to
the census of the population. In England and in the United States, no regard at all is
paid to the principle of proportionality ; in Germany, not much ; in France, consider-
able. If there is any one controlling principle applicable to all these cases, it is the
representation of local governmental organizations. In the Senate of the United States,
this is the exclusive principle. In the German Federal Council, it is the dominant
principle. In the French Senate, considerable regard is paid to the census of the
population in determining the number of senatorial seats to be assigned to each
departement : but within the dipartement the eSect of this concession to proportionality
IS motlified by a very great discrimination in favour of the less populous cmnmnnes as
regards the number of representatives accorded them in the electoral colleges. In
England alone no regard seems at present to be paid to local governmental or adminis-
trative organizations in the distribution of the seats in the upper house. If we look,
however, to history, we find that the representation of England in the House of Lords
was originally very closely connected with the local organizations ; while the number of
seats in that house now occupied by representative peers from Scotland and Ireland is
fixed by statute, and is thus defended against the power of the Crown on the one side,
and the accidents of extinction on the other. These statutes are based far more upon
territorial considerations than upon the idea of proportionality. We maj' say then, I
think, that the principle controlling the distribution of seats in the upper houses of the
legislatures of these typical systems is the representation of the local governmental or
administrative organizations. 'J'his is a most valuable principle. It tends to preser\'e
the real fruits of the historic development of the State. It gives opportunity for the
exertion of a larger influence by the cultured minority ; and it gives more security to
the rights of that minority. Many of the greatest statesmen have been brought for-
ward through the influence of this principle. The organizations which have not the

418 COMMENTARIES ON THE CONSTITUTION. [Sec. 7.

strength of numbers have been compelled to search diligently for their best talent in
order to maintain, in fact, their legal equality. The principle, however, is frequently
assailed as mediaeval and contradictory to the doctrine of popular sovereignty. From
the view which we take of the province of legislation, viz., the interpretation of the
reason of the State rather than the registration of the popular will, this objection
appears irrelevant. Something more conclusive than the demand for proportionality
must be addiiced before we can be called upon to admit that this system of distributing
representation is faulty. If the less populous communitj' were always the more cultured,
this would certainly be a better distribution than the principle of numbers could afford.
It is because the less populous community may chance to be also the less cultivated that
the system is in some degree unreliable. It would not, therefore, serve as the exclusive
system of distribution, i.e., the system for both legislative chambers. When, however,
it is balanced by the principle of distribution according to population in the other house,
there is every reason to believe that it contributes powerfully to the production of sound
legislation, and that it is a most wholesome check upon the radical tendencies of mathe-
matical politics." (Burgess, Political Sc. II. pp. 114-116.)

§ 68. " Chosen by the People of the State."

The senators for a State are to be chosen by those of ' ' The People of the State "
possessed of the qualifications prescribed by section 8. This provision marks a great
advance in a democratic direction. The Commonwealth Bill of 1891, following the pre-
cedent of the Constitution of the United States, provided that the Senators for each
State should be directly chosen by the Houses of the Parliament of the State. In the
Canadian Constitution the Senators are appointed by the Governor-General for life.
The principle of popular election, on which the Senate of the Commonwealth is founded,
is more in harmony with the progressive instincts and tendencies of the times than those
according to which the Senate of the United States and the Senate of Canada are called
into existence. In the Convention which drafted the Constitution of the Commonwealth
not a single member was found in favour of a nominated Senate. It was generally con-
ceded, not only that a chamber so constituted would be of an obsolete type and repug-
nant to tiie drift of modern political thought, but that, as a Council of States, it would
be an infirm and comparatively ineffective legislative body. A few members were,
indeed, for a time in favour of a Senate elected by the State legislatures ; but they
eventually abandoned that view as the debate progressed, and as the strong volume of
authoritative opinion, and the overwhelming mass of evidence opposed to the manner in
which the Senate of United States is chosen, was presented and developed.

The mode of choosing Senators embodied in the American Constitution was
adopted in times and under circumstances quite different from those of the present ; but
even in the Philadelphia Convention which drafted that Constitution there were wise and
far-seeing men who advocated the election of Senators directly by the people. " Ihe
States," contended James Wilson, one of the Representatives of Pennsylvania, " are in
no danger of being devoured by the national government ; I wish to keep them from
devouring the national government. Their existence is made essential by the great
extent of our country. I am for an election of the second branch by the people in large
districts, subdividing the districts only for the accommodation of voters." (Bancroft's
History of the Constitution of the U.S. 2nd vol. p. 30.)

As we have already seen, the functions of the Senate are of a double kind : first as a
chamber of revision and i-eview in matters of genei-al legislation ; and, secondly, as a
chamber to represent the particular views, opinions, and interests of the States, in
matters admittedly within the sphere of the federal authority but respecting whicli
differences miglit arise, as well as for the purpose of resisting proposals not within the
sphere of the federal authority. For the purpose of exercising powers such as these it was
contended, with unanswerable force, that the Senate of the Commonwealth could and
should be chosen by the process of popular election, and that tliere was no occasion to
vest the choice in the State legislatures. In Australia there was a particular reason, in
addition to the democratic one, why the American precedent should not be followed. In

§§ 68-69.]

THE SENATE. 419

two of the six Australian colonies, namely, Queensland and New South Wales, the Up]>er
Houses were nominated by the Crown, and not elected by the people ; and the same was
the case in New Zealand. It would be highly undesirable for Federal Senators to be
elected by any Legislature, one branch of which would not be elected by the people,
and, therefore, would not be responsible to the people. It would also be highly desir-
able that the senators representing the various States should be elected on a uniform
basis, but there would be no such uniformity if some senators were elected by nomi-
nated Chambers and others bj- Chambers deriving their existence directly from the
people. The struggle in Queensland over the Federal Enabling Bill was an object lesson
of the ditficulties to be encountered where there were two Chambers of a different basic
Constitution. In Queensland the Legislative Assembly distinctly denied the right of
the nominated Upper House to take part in the election of members to be sent to the
Federal Convention. That was the whole contest. In the same way we might expect
even more formidable objections to be taken to the Constitution of a Federal Senate
partly elected by nominee Chambers. In addition to these considerations there was a
gathering mass of testimony before the Convention as to the unsatisfactory manner in
which the American system of senatorial elections was conducted.

" In one respect alone is there any sign of a popular demand for a change in either
the functions or the construction of the Senate. A movement is now on foot to secure a
constitutional amendment transferring the election of senators from the State legislatures
to the people ; and on account of the facilities for intrigue and bribery which are afforded
by the present method, it is not unlikely that such a change would be beneficial. But
the Senate of the United States will probably endure as long as any second legislative
chamber upon the earth " (Foster, Comm. 1. p. 498.)

" A proposal recently made to amend the Federal Constitution by taking the election
of senators from the legislatures in order to vest it in the people of each State, is
approved by some judicious publicists, who think that bad candidates will have less
chance with the party at large and the people than they now have in bodies apt to be
controlled by a knot of party managers. A nomination made for a popular election will
at least be made publicly, whereas now a nomination for an election by a legislature may
be made secretly." (Bryce, The American Commonwealth, I. pp. 96 and 97 ; Senator
Mitchell's article in the Forum, June 6, lS96.)

" The method of election to the Senate or second Chamber is a matter that will be
thrashed out in the Committee and upon the discussion of the Bill. There are some who
think the only v,&y to preserve definite responsibility is to have the election by the
people of the quota of each State to the Senate. There are otheis who think that could
be well and best done by the election of the quota of each State by its legislature ; there
are others, too. who think that there should be a difference in suffrage between the
electorate which chooses the States Council and the National Assembly. It should not be
our purpose now to lay down definite lines upon any one of those subjects, because they
are really questions which should be decided only after we become acquainted with each
others' views in this debate and upon the discussion in Committee, and when the Bill is
being discussed. It is then, and then only, that we shall he fully in possession of the
reasons which underlie each others' views, and be able to say how far we can demand
concessions in rettum." (Mr. Edmund Barton, Con v. Deb., Adel., p. 2'2. )

§ 69. ''One Electorate.''

One of the arguments in favour of the election of senators by the State Legislatures
was that thereby the corporate and luidivided representation of the States in the Senate
was secured. It was, however, considered that the advantage of unified State represen-
tation in the Senate could be secured quite as eflectually by the system, now provisionally
embodied in the Constitution, of "one State one Senatorial electorate." As soon as it
was decided that the senators should be elected by the people and not by the legislatures,
the \-iew was pressed with great force that the people of each State, in choosing senators
for the State, should vote as one constituency. If a State were divided into electorates,
and if locality became the guiding principle of selection, the special purpose for which
the Senate was constituted would be obscured. That purpose is that each State should
be represented as a whole, as one entitj-, and not in divisions or sections. Voting as
electors of one great constituency, it is contended, the people of a State will not be

420 COMMENTARIES ON THE CONSTITUTION. [See. 7.

influenced by local sympathies and parochial interests ; at any rate not to the same
extent as if they were required to vote in provincial groups. It is believed that the
process of voting in one common electorate is calculated to promote the selection of the
best men whose services are available — men of broad views, established reputations, and
extended experience, such as should be elected members of the Senate. There would be
a better chance of giving effect to what Sir Henry Parkes, in 1891, described as the only
conservatism possible in a democracy — the conservatism which arises from oflScial
position, length of experience, and weight of character. (Mr. E. Barton, Conv. Deb.,
Adel., p. 669; Mr. H. B. Higgins, Conv. Deb., Syd.. pp. 369-70.)

A serious objection raised to the system of *' one State one Senatorial electorate "
was, that the expense necessarily involved in contesting an election extending over a
whole State would be so great that onlj' rich men would become candidates for the
Senate, and that poor men of talent and capacity would be excluded. It was, however,
denied that sucli would be the case. On the contrary, it was contended that the
largeness of the electorate and the vast number of voters to be canvassed or appealed to
would render it impossible for even a rich man to secure a seat in the Senate by lavish
expenditure ; he would have a better chance of doing so in a small or moderately large
electorate. A man of limited means who had the confidence of the public would have a
better chance of being successful than a millionaii-e who did not possess that confidence.
It was mentioned during the debate that, on the occasion of the election of members
for the Federal Convention, it was found that democratic candidates of moderate means
had no difficulty in taking part in the campaign, on equal terms with conservative
candidates, backed by wealth and social position. If the well-to-do candidates spent
more money, it was because tliey were expected to do so ; it did not follow that the
expenditure of money gained them many more votes. Mr. Tienwith was proud to
mention the fact that his expenses in connection with the Federal Convention election
did not exceed £4.

1'he next objection was that the election of senators was a matter of State concern,
and that each State should be allowed to decide whether its senators should be chosen
by the people voting in one or several divisions. It was also feared that popular
election would tend to place in large cities, towns, and centres of population the domin-
ating influence in Senatorial elections, to the prejudice of the people in the country
districts who, through want of organization, would not be able to exercise an influence
proportionate to their numbers. It was accordingly pi'oposed at the Sydney sittings of
the Convx'ntion to amend the "one State one electorate " plan adopted at Adelaide, and
to allow each State, if it thought fit, to split its territory into as many senatorial
electorates as would be consistent with the application of the rotation principle.

The proposed modification was strongly opposed by most of the leading members of
the Convention. It was pointed out that the amendment, if adopted, might endanger
the principle of State representation in the Senate, with which the sectional election of
Senators would be inconsistent. Local representation was adequatelj- provided for in
the House of Representatives. In the Senate the principle of locality, as the basis of
representation, should be ignored, and corporate representation should be insisted upon.
Under no circumstances, it was argued, should the matter be left to the discretion of the
State Parliaments. It was not a matter of solely local concern. It was absolutely
necessary that there should be uniformity in the electoral system by which senators

^we^e to be chosen ; because the mode in which senators were chosen in one State might
pubstantially affect the people in other States. If the power to cut up a State into
senatorial districts were granted to the State Parliaments it might lead to " gerrj--
riiandering ;" by a careful adjustment of the boundaries of districts, and the grouping of
populations in those districts, a State Parliament would be able to unduly colour the
political principles of the senators returned for the State. (Mr. H. B. Higgins, Conv.
i)eb., Syd., p. 369.)

With reference to the suggested possibility of cities, towns, and centres of popula-
tion exercising a predominating influence as against voters in rural districts, it was

§§69-72.[ THE SENATE. 421

pointed out that the Parliament of each State was empowered to make laws prescribing
the method of choosing Senators for that State (sec. 9). In the exercise of that power
the State Parliaments, if they thought fit, would be able to introduce a system of pre-
ferential voting, providing for the representation of minorities, which would completely
dispose of the objection referred to. (See Note § 77, " Methods of choosing Senators")

§ 70. "Queensland."

The circumstances which conspired to prevent the representation of Queensland in
the Federal Convention are detailed in the Historical Introduction, pp. 162, 187, 193.
At the Conference of Premiers which met at Melbourne in .January, 1899 (see Historical
Introduction, p. 218, anpra), Mr. Dickson, the Premier of Queensland, pleaded hard for
an amendment in the Constitution enabling the Parliament of that colony, if it became
an Original State, to divide it into divisions for the election of Senators and to deter-
mine the number of Senators for each division. The Conference decided that, although
this concession would involve a departure from the fundamental principle, yet the Con-
ference, considering the special circumstances of Queensland, its vast territory and
scattered population, coupled with the fact that its population seemed to be naturally
growing and developing in three divisions which may hereafter become separate States,
and considering also that Queensland had not been represented in the Convention and
was therefore derived of the opportunity of having her views and interests adequately
considered, decided to recommend the insertion of the special provision which now stands
as the second paragraph of the section.

That Queensland would be an Original State was ensured by the affirmative vote of
the people of that colony on 2nd September, 1899, and confirmed by the Address to the
Queen subsequently passed by both Houses of the Queensland Parliament.

This power of the Parliament of Queensland only exists "until the Parliament of
the Commonwealth otherwise provides." The Parliament of the Commonwealth has,
therefore, the power to require that the State of Queensland shall be represented in the
Senate as a corporate whole.

§ 71. "Original State."

An Original State is defined by Clause 6 as a State which is part of the Common-
wealth at its establishment. An Original State is entitled, as a constitutional right, to
equal representation in the Senate and other special privileges which need not neces.
sarily be conceded to new States. The Federal Parliament may admit to the Common,
wealth or establish new States, and may upon such admission or establishment make or
impose such terms and conditions, including the extent of representation in either House
of the Parliament, as it thinks fit (sec. 121). The fact that new States are not entitled
as of right to equal representation shows that the system is not founded on a logical
pnnciple, but that it is a political compromise or contrivance regarded as one of the con-
ditions precedent to the establishment of the Commonwealth.

§ 72. " Equal Representation . . Shall be Maintained."

The immobility of the principle of the equal representation of Original States in
the Senate is assumed to be secured by the combined operation of this section and
section 128, which provides that no alteration diminishing the proportionate representa-
tion of any State in either House of the Parliament, shall become law unless the
majority of the electors voting in that State approve the proposed law. Referring to
the corresponding section of the Constitution of the United States, Dr. Burgess says :—

" The principle of representation in the Senate is Stnte-equality. The Constitu-
tion secures this equality even against amendment in the ordinary manner. That is, the
®J**®> the sovereignty, as it was organized back of the Constitution, undertakes to secure
the principle of State-equality in the Senate, against the state, the sovereignty, as

422 COMMENTARIES ON THE CONSTITUTION. [Sec. 7.

organized within the Constitution. This is confused and unnatural. It is not possible
that this restriction could stand against a determined effort on the part of the state
within the Constitution to overthrow it. It is a relic of confederatism, and ought to be
disregarded. It may be good political science now and in the future that the principle
of State-equality should prevail in the Senate, but the state as organized in the Consti-
tution must be the final judge of this. No Constitution is complete which undertakes
to except anything from the power of the state as organized in the Constitution. Such
a Constitution invites the reappearance of a sovereignty back of the Constitution, i.e.,
invites revolution." (Burgess, Pol. Sc. II. p. 49.)

§ 73. " Chosen for a Term of Six Years."

The members of the Senate of the United States are elected by the State Legisla-
tures for a fixed term of six years, subject to the rotation system by which onetliird
retire every two years. In Canada the senators, appointed by the Governor-General,
hold their seats for life. In Switzerland the cantons determine the tenure of the
members of the Council of States. Members of the Federal Council of Germany hold
their seats at the will of the Executive Governments of the States. The Commonwealth
Bill of 1891 proposed that the tenure of senators to be elected by the Legislatures
should be six years, subject to the retii-ement of one-half the senators every three years.
The same term and tenure for Senators have been embodied in the present Constitution.
The length of the legal term of a senator is, therefore, twice that of the potential term
of a member of the House of Representatives. The reason for this difference in length
of term is that, in theory, the Senate is designed to be a continuous body, and that
Senators ought to have a longer duration of membership, in order to give them greater
independence and better opportunities for deliberation in dealing with proposed legisla-
tion, so that they may, if necessary, even protect the people themselves. (Foster,
Comm. I. 4ti9.)

§ 74. " Certified by the Governor."

Executive Control of Senate Elections. — By sec. 12, the Governor of each
State is charged with the duty of issuing writs for the election of senators ; and this
section enacts that the names of the senators chosen for each State must be certified by
the Governor to the Governor-General. This provision was supported in the Convention
as helping to preserve the essence of State unity. (Sir John Downer, Conv. Deb , Syd.,
393 ; see also note, § 94, infra.)

The Constitution, while it gives the Federal Parliament wide legislative powers in
respect of the mode of election and laws relating to elections of senators, seems to vest
the administrative conduct of the elections wholly in the States. The State Parlia-
ments are to fix the times and places of the elections ; the State Governments are to
issue the writs and certify the result of the polls. The power to issue the writs involves
the power to appoint returning officers, who will be State officials, and whose duty
will be to appoint deputies, to fix polling places, to advertise, to hold the elections at
the times and places prescribed by State laws, and to return the writs to the Governors
of their respective States. The method of election (sec. 9) and the laws relating to
elections (sec. 10), except as to the times and places of elections, may be prescribed by
the Federal Parliament ; but the executive control remains constitutionally vested in
the States.

ExPKNSEs OF Senate Elections. — From the proposition that the Senate elections
are conducted and controlled by State oflficials, it seems to follow logically' that the
expenditure in connection with these elections must be defrayed by the States. The
returning officers, being State officials, must look to their own Governments for their
expenses ; and if the States have a free hand as to the number of polling-booths, the
advertisement of the elections and so forth, it would be manifestly unreasonable that the
Federal Government should be under an obligation to pay any bills which may be
incurred, however extravagant ; and no such obligation appears to be imposed by the
Constitution.

§74.]

THE SENATE. 423

At the same time, the Constitution does appear to contemplate that the Federal
Government shall have the power to defray these expenses. Sec. 83 provides that the
Oovemor-General in Council may draw from the Treasury and expend such moneys as
may be necessary " for the holding of the first elections for the Parliament," not merely
for the House of Representatives. It would seem, therefore, that the Federal Govern-
ment, though it is under no obligation to defray the expenses of senate elections, has the
power to reimburse the States for expenses reasonably incurred. Whether it exercises
this power, or leaves each State to bear its own expenses, is perhaps not of much
moment, because the aggregate amount of the re-imbursement would come out of the
surplus divisible among the several States. The re-imbursement to each State would
probably be made, if made at all, on a uniform population basis ; and as it would then
be charge<l against each State as federal expenditure on the same basis, the result would
be unaltered.

In connection with elections for the members of the House of Representatives, the
Federal Government will appoint returning officers and make arrangements for the
conduct of electoral proceedings throughout the Commonwealth, and pay the necessary
expenses. It will be possible on certain occasions— for instance, at the first election and
after a double dissolution — for the Federal authorities and the State authorities to
concur in the holding of elections for both Houses on the same day. As the election of
representatives in a State will be conducted on the same suffrage as the election of
senators for the State, it may be possible for the Federal authorities and the State
authorities to join in the expense of providing one common electoral roll for Federal
elections in each State.

Qualification of electors.

8. The qualification of electors"^ of senators shall be in
each State that which is prescribed by this Constitution, or
by the Parliament, as the qualification for electors of members
of the House of Representatives ; but in the choosing of
senators each elector shall vote only once,'®

Historical Note. — This provision (except the words prohibiting plural voting) was
introduced at the Adelaide session in the same form, as part of the preceding clause.
In Committee, the words " but in the choosing of senators each elector shall have only
one vote " were added on Mr. Barton's motion. (Conv. Deb., Adel., p. 670.) Lest it
should be contended that this would prevent an elector from casting votes for two or
more candidates, this was afterwards amended by adding the words " for as many
pei-sons as are to be elected " — a phrase which later on was rejected in favour of " each
elector shall vote only once." A pro^^sion was also added that " if any elector votes
more than once, he shall be guilty of a misdemeanour." (Conv. Deb., Adel., pp. 675,
1189-90, 1210.)

At the Sydney session, a suggestion by the Legislative Assembly of South Australia,
to the efiect that senators should be elected in all the States on the basis of one adult
one vote, was negatived by 32 votes to 13. A suggestion by the Legislative Council of
Tasmania, to leave out the provision as to misdemeanour, was supported on the ground
that the words were unnecessary, because a breach of a statutory prohibition was
always a misdemeanour. Moreover, it was thought inatlvisable to load the Constitution
with penal provisions. The amendment was agreed to bj- 28 votes to 16. A suggestion
by the legislative Council of Victoria, to prevent disfranchisement of existing voters,
was formally negatived, with a view to making Mr. Holder's clause (sec. 41) apply to
both Houses. (Conv. Deb., Syd. [1897], pp. 416-20.) At the Melbourne session, after
the fourth report, the provision was placed as a separate clause.

424 COMMENTARTES ON THE CONSTITUTIOK [Sec. 8.

§ 75. '' Qualification of Electors of Senators."

The qualification of electors of senators in each State is the same as the qualification
of electors of representatives in each State. This qualification is defined in sec. 30, a
reference to which is necessary to explain the meaning of the expression " That which is
prescribed by this Constitution or by the Parliament." In sec. 30 the Constitution
prescribes that the qualification of electors of representatives shall be, in each State,
that which is prescribed by the law of the State as the qualification of electors of the
more numerous House of the Parliament of the State. This therefore is the Consti-
tutional provision for the qualification of electors of both Houses. But by virtue of the
words " Until the Parliament otherwise provides" this constitutional pro\ision may be
altered by the Parliament, without the necessity of recourse to the process of amend-
ment of the Constitution under sec. 128. The Parliament may pass a suffrage law for
the Commonwealth, superseding at all Federal elections the State suffrages, subject to
the restriction prescribed by section 41. The Parliament cannot, however, prescribe one
suffrage for the Senate and another for the House of Representatives. Whatever
suffrage it prescribes for the House of Representatives will, by virtue of this section, be
the suffrage for the Senate also. (For Notes on Suffrage see § 122, infra.)

§ 76. " Each Elector shall Vote only Once."

By this provision a federal elector is forbidden to vote more than once at any
senatorial election. Without such au inhibition it might have been possible for an
elector to record his vote in every electoral division throughout a State, in which his
name was registered in the State rolls, and to which he could journey on the daj' of
polling. The possibility of plural voting at a senatorial election would not, owing to the
magnitude of the constituency, be so great as at a general election of members of the
House of Representatives in which the constituencies would necessarily be smaller and
more numerous. The application of the restriction to the election of members of both
Federal Chambers is a strong proof of the liberal policy which guided and influenced the
deliberations of the Federal Convention.

The mode of enforcing the inhibition formed the subject of some debate in the
Convention. At the Adelaide session a provision was added to the effect that if an
elector voted more than once at the same election he sliould be guilty of a misdemeanour.
At the Sydney session a recommendation was received from both Houses of the Tas-
manian Legislature that the penalizing words should be omitted, as being foreign to a
Constitution, although no objection was raised to another section (46) which created an
offence and provided a penalty. In supporting the omission of the words. Sir P. 0.
Fysh urged, at the Sydney Convention, that the bill should not embrace anything except
what was necessary for the framing of the Constitution, and that any matters which
belonged to the criminal law, or the electoral laws of the States, had better be left as
they were. As far as the criminal law was concerned, it should not be part of the Con-
stitution. (Conv. Deb., Syd., p. 417.)

" There seemed to be a considerable number of members at Adelaide who wished to
have this provision about a misdemeanour inserted, and it was inserted in accordance with
the wish of the majority. I am, myself, of opinion that so far as you can you should
leave the Constitution to deal simply with matters of necessary machinery. I am not,
myself, strongly in favour of a provision of this kind, and I think it can otherwise be
provided for ; but I am entirely in the hands of the Committee. If there is such a desire
on the part of the Committee, I shall not object to the retention of these words, although
I admit the force of the argument that the Constitution Act is not the place for making
offences against the criminal law, or for prescribing penalties. That is perfectly true ;
but the object in the first instance seemed to be to obtain a statement of this kind in the
Constitution. The object seemed to make it plain on the face of the Constitution that
whoever offended against the law of one man one vote should be in danger of the police.
I think I pointed out in Adelaide, and hon members mostly agreed with me, tiiat whore
a man does wilfully and deliberately what is against the express provisions of an Act, it
is a misdemeanour, and there is no necessity to place that in an Act of Parliament."
(Mr. Edmund Barton, id. p. 417.)

§77.]

THE SENATE. 425

On a division tfae words declaring plural voting at a senatorial election to be a mis-
demeanour were struck out. A breach of a direct statutory prohibition, however, is a
misdemeanour. (See Note, § 123, infra.)

Method of election of senators. Times and places.

9. The Parliament of the Commonwealth may make laws
prescribing the method of choosing senators", but so that the
method shall be uniform for all the States'^ Subject to any-
such law, the Parliament of each State may make laws pre-
scribinor the method of choosing- the senators for that State.

The Parliament of a State may make laws for determin-
ing the times and places of elections of senators"^ for the State.

UsiTKD States. — The times, places, and manner of holding elections for senators and representa-
tives, shall be prescribed in each State by the legislature thereof ; but the Congress maj- at
any time, by law, make or alter such regulations, except as to the place of choosing
senators. — Const., Art. 1, Sec. iv., subs. 1.

Historical Note. — Clause 10, Chap. 1., of the Commonwealth Bill of 1891 was as
follows : —

" The Parliament of the Commonwealth may make laws prescribing a uniform
manner of choosing the senators. Subject to such laws, if anj', the Parliament of each
StAte may determine the time, place, and manner of choosing the senators for that
State by the Houses of Parliament thereof." (Conv. Deb., Syd [1891], p. 599.)

At the Adelaide session, 1897, the same clause was adopted with the omission of
the words "by the Houses of Parliament thereof." In Committee, Mr. Deakin sug-
gested " method " as preferable to "manner," but no amendment was moved. (Conv.
Deb., Adel., pp. 672-4.)

At the Sydnej' session, a 8U£;gestion by both the Houses of the Parliament of Tas-
mania, to leave the manner of choosing senators to the States altogether, was negatived.
A suggestion by the Legislative Assembly of Victoria, to insert "the times, places,
and" before " a uniform manner," in order to enable the Federal Parliament to legis-
late as to the times and places of elections, was agreed to. (Conv. Deb., Syd. [1897],
pp. 987-8.)

At the Melbourne session, after the fourth report, the clause was altered to its
present shape, the determination of times and places being again left to the States. In
Committee, ilr. Symon pointed out that this was an alteration in substance ; but no
amendment was moved. (Conv. Deb., Melb., pp. 2445-7.)

§ 77. "Method of Choosing Senators."

The method of choosing senators in each State may, in the first instance, be pre-
scribed by the Parliament of each State. The Parliament of the Commonwealth, how-
ever, may at any time after the first election of senators pass laws prescribing the
" method of choosing senators," subject to the restriction that such method shall be
uniform for all the States. The question which at once presents itself for consideration
is the meaning of the expression " method of choosing."

" Method of choosing " clearly does not include the sub-division of the State into
electorates, because sec. 7 gives this power solely to the Federal Parliament. Nor does
it include the fixing of the times and places of elections ; because sec. 9 reserves this
power absolutely to the State Parliaments. The power to prescribe the method of
choosing senators is also limited by the constitutional provision that " each elector shall
▼ot« only once."

426 COMMENTARIES ON THE CONSTITUTION. [Sec. 9.

Subject to these express constitutional provisions, it would seem that the power to
prescribe the method of choosing senators extends to the regulation of the whole process
of election, including the mode of nomination, the form of writs and ballot papers, the
mode of voting, the mode of counting votes, &c. The section would thus enable the
State Parliaments provisionally, and the Federal Parliament ultimately, to prescribe the
mode in which an elector should record his vote, e.g., whether he should vote for as
many candidates as there are vacancies to be filled at the election, or whether he should
have the option of ''plumping" for a less number of candidates or of concentrating his vote,
or whether he should mark some or all of the candidates in the order of his preference.
Provision could thus be made for the introduction of some system of preferential or
alternative voting and the representation of minorities.

" Method of choosing " would probably also include genei'al regulations as to the
conduct of elections. Under the power conferred on the Congress of the United States
to prescribe the "times and manner of holding elections for senators and represen-
tatives," a statute has been passed providing for the holding of federal revision courts
and the appointment of *' supervisors of elections " to attend and scrutinize the registra-
tion of electors and the recording of votes, Mith power to arrest persons guilty of fraud
against the election laws, and if necessary to sunmion the po.ise comilatus to their aid.
(Burgess, Political Sc. ii. 44.)

In the absence of State or federal laws prescribing the ' ' method of choosing
senators," the senators for a State would be chosen according to the method prescribed
by " the law relating to elections for the more numerous House of the Parliament of the
State." (See Notes, § 124, injra.)

" I take it this deals more with the manner in which you carry out your elections,
and that the provision in a Constitution that a State shall be one electorate in voting as
an entity of the Constitution is not a matter of minor degree as are these summed up in
the phrase 'manner of choosing.' If these matters come before the courts the courts
cannot have any difficulty." (Mr. Edmund Barton, Conv. Deb., Adel., p. 673.)

" 'i"he definition which Mr. Barton has rather implied than given of the word 'manner'
raises a doubt in my mind as to whether the word 'manner' is also wide enough to
cover all alteration in the system of voting, if so desired. If ' manner ' relates rather to
the conduct of an election and the general provisions made for taking votes, is it wide
enough to cover also, and to a certainty', a variety of systems of voting which might
perhaps be indicated by the word ' method ?' Would it not be desirable to take care
that those States which think fit to adopt a system of proportional voting for the repre-
sentation of minorities shall have power to do so, and that the Parliament of the Federal
Commonwealth shall also be able to adopt such a system if it thinks desirable ?" (Mr.
A. Deakin, id. p. 673.)

" There are only two limitations to the subjects which may come under the head of
'manner of choosing.' One is that the member is to be chosen bj^ tiie people of the
States as one electorate. That cannot be altered. The other is that the qualification
shall be as stated for the House of Representatives, and one man shall have one vote.
Those two things are expressly provided for, and therefore the ' manner ' cannot touch
them. They really put the very basis upon which the Senate is elected. But the
manner of conducting elections must embrace everything else, and the manner of
choosing, surely, would include the method in which the votes are to he recorded. The
method in which votes are recorded must allow for representation of minorities,
alternative votes, or any other system." (Mr. R. E. O'Connor, id. p. 673.)

" It would be perfectly open, for instance, for every Parliament to provide for the
Hare system of election. The tenth clause provides that the Parliament may, in the
first instance, prescribe an uniform manner applicable to every State, of choosing
members for the Senate ; but, subject to such provision, the Parliament of each State
may decide how to choose members of that body. It reserves such a power to the
Parliaments of the States. But there is reserved to the Federal I'arliamcnt a power of
control, which might well be exerci.sed, in the case of certain difficulties or misdeeds
arising, to take the matter into its hand." (Mr. Edmund Barton, id. p. 673.)

§ 78. " Uniform for all the States. "

" Uniform " means the same in all the States; not different methods indifferent
States. (Head Money Cases, 112 U.S. 580.) Where a Federal Legislature is authorized
to pass " uniform laws " it is not merely enabled to pass laws the operation of which

§§78-79.1 THE SENATE. 427

shall be uniform, but to establish uniform laws on the subject throughout the union.
This uniformity is incompatible with state legislation on that part of the subject to
which the federal law may extend. (Sturges v. Crowninshield, 4 Wheat. 12.3-194.)

§ 79. " Times and Places of Elections of Senators."

This sub-section further strengthens the control of the States over the election of
senators. The Parliament of a State may, by legislation, determine the times when,
upon the occasions arising under the Constitution, elections of senators for the State
shall take place ; it may also determine the places at which polling booths for the
reception of votes for the election of senators shall be held. These powers are per-
manently and exclusively vested in the States. The election of senators will, of course,
take place on the occurrence of the events prescribed by the Constitution, such as the
triennial election of senators, when half the number of senators retire according to the
process of rotation deBned b\' section 13 ; and such as a general election of the Senate
following a dissolution thereof under section 57. Under a similar section in the
American Constitution it has been held that when the legislature of a State has failed to
' ' prescribe the times, places and manner " of holding elections, the Governor may, in
case of a vacancy, designate in his writ of election the time and place, when and where
such election will be held ; but that a reasonable time should be allowed for the promul-
gation of the notice. (Hoge's Case, CI. and Hall [U.S.], 1.35 ; cited Baker Annot.
Const. 6.)

Application of State laws.

10. Until the Parliament otherwise provides, but subject
to this Constitution, the laws in force in each State, for the
time being, relating to elections^ for the more numerous
House of the Parliament of the State shall, as nearly as
practicable, apply to elections of senators for the State.

HisTOEiCAL Note. — At the Adelaide session, the following words (taken from the
corresponding clause of the Commonwealth Bill of 1891, relating to the House of Repre-
sentatives) were introduced as paragraph 2 of the preceding clause : —

" Until such determination, and unless the Parliament of the Commonwealth other-
wise provides, the laws in force in the several States for the time being, relating to the
following matters, namely : The manner of conducting the elections for the more
numerous House of the Parliament of the State, the proceedings at such elections,
returning officers, the periods during which elections may be continued, and offences
against the laws regulating such elections, shall, as nearly as practicable, apply to
elections in the several States of members of the Senate." (Conv. Deb., Adel.,
pp. e74-6.)

At the Sydney session, a suggestion by both Houses of the Parliament of Tasmania,
to omit "and unless the Parliament of the Commonwealth otherwise provides," so as to
make the power of the States permanent, was negatived. (Conv, Deb., Syd., 1897,
pp. 988-9.)

At the Melbourne session, the paragraph was omitted, with a view to placing the
provision as to both Houses in a .single clause (44 aa). (Conv. Deb., Melb., pp. 1827,
1855.) After the fourth report, however, it was determined to deal with each House
separately ; the clause was restored in shorter and more general terms, and clause 44 aa
was omitted. (See also sec. 31.)

428 COMMENTARIES ON THE CONSTITUTION. [Sec. 11.

§ 80. " Laws in Force in Each State . . Relating to

Elections."

This section provides that in the election of senators tor a State the laws for the
time being in force in such State relating to elections for the more numerous House of
Parliament of the State shall, so far as practicable, be applied. To this general enact-
ment there are two limitations ; one being that such electoral machinery laws are to be
applicable to senatorial elections only until the Parliament otherwise provides ; and the
second being that the operation of the section is to be "subject to this Constitution."
The latter phrase seems to cover two cases ; (1) express provisions in the Constitution
relating to elections — such as the prohibition against plural voting, and the provision
that until the Parliament otherwise provides, each State shall be one electorate ; and (2)
laws passed by the States under the authority of the Constitution — such as laws deter-
mining the time and places of elections and provisional laws prescribing the method of
choosing senators. Accordingly the section is merely provisional and temporary. It
may be superseded in part by State legislation, under sec. 9, and superseded altogether
by federal legislation.

The words " until the Parliament otherwise provides," seem, by virtue of sec. 51 —
xxxvi. , to give the Federal Parliament (subject of course to the expi'ess limitations
imposed by the Constitution) a general power to legislate as to "laws relating to
elections" for the Senate — words which have a wider scope than the words " lawa
prescribing the method of choosing senators." The executive conduct of the elections,
however, will remain with the States. (See Note, § 74, supra.)

Section 31 of the Constitution, making preliminary application of State election laws
to the choice of members of the House of Representatives, is the same in substance as the
section now under review. Both sections, as originally framed, enumerated in detail the
particular branches of the electoral law, to which they were intended to apply (see
Historical Note, supra) ; but at the Melbourne session of the Convention this enumeration
was replaced by general words.

The omission of the particular words, instead of weakening, rather strengthens the
section by rendering it more general, and less restricted than the original one. Tlie
section, as it stands, is most comprehensive, and applies, to senatorial elections in a
State, all State laws relating to the conduct of and proceedings at elections of members
of the popular Chamber in that State ; the appointment of returning officers, their
deputies and assistants, and their respective powers and duties ; the ijublication of the
mandate contained in the senatorial writs ; the preparation of voters' rolls ; the prepara-
tion of ballot papers ; the nomination of candidates ; the conditions of nomination — such
as the signature of nomination papers by a certain number of electors, and the lodging
of a deposit with each nomination paper as a guarantee of bo7ia fides ; the withdrawal of
nominations ; the notification of the time and places of polling as fixed by State laws
under section 9 ; the recording of votes by secret ballot on the day of polling ; the proof
of qualification and proof of identity of voters ; questions to be answered or oaths taken
by persons seeking to vote whose qualification or identity may be challenged ; the main-
tenance of order at the polling places ; the time of opening and closing thereof ; the count-
ing of votes, the certification of returns, and the declaration of the poll.

Failure to choose senators*'.

1 1. The Senate may proceed to the despatch of business,
notwithstanding the failure of any State to provide for its
representation in the Senate.

Historical Note. — Clause 11, chap. I., of the Commonwealth Bill of 1891 was as
follows : —

^§ 80-81.]

THE SENATE. 429

" The failure of any State to pro\'iile for its representation in the Senate shall not
afiFect the power of the Senate to proceed to the despatch of business. "

At the Adelaide session, 1897, the clause was adopted in the same words ; and at
the Melbourne session, after the fourth report, it was altered to its present form.

§ 81. " Failure to Choose Senators."

This section must be read in conjunction with the quorum section, which enacts
that the presence of at least one-third of the whole number of senators shall be neces-
sary to constitute a meeting of the Senate for the exercise of its powers (sec. 22).
Accordingly the Senate will be capable of being duly constituted for the despatch of
business if at least one-third of the States under the system of equal representation
have provided for their representation in that body ; the failure of two-thirds of the
States to return the quota of senators to which they are entitled under the Constitution
would not paralyse the legislative action of the Senate, and the absent and unrepre-
sented States would be bound by laws passed whilst the statutory quorum was present,
just as legally as if they were fully represented. The Constitution of the United
States of America requires an absolute majority of the membei-s of the Senate to con-
stitute a quorum (Art. I. sec. 5, sub-sec. 1), and there is no section corresponding to
the above one stipulating that unrepresented States are bound as effectively as those
which have elected Senators. In the case of Cohens v. Virginia, 6 Wheat. 264, it was
said that if a majority of States should refuse to elect senators the government of the
United States of America would necessarily come to an end. Applying that principle
to the Constitution of the Commonwealth it might be contended that there would be a
deadlock in the Federal Government if more than two-thirds of the States failed to
elect senators. The risk of such a failure, however, is very remote.

This section contains the only legal and effective proWsion made by the Constitu-
tion for the prompt and regular return of senators by the States. The whole carriage
of senatorial elections is vested in the State authority ; the Federal Government can
exercise no control or supervision over them. The Governor of each State issues the
writ for a senatorial election ; the election is conducted by State officers ; the Governor
of the State, on the return of the senatorial writ to him, has to certify to the Governor-
General the names of senators dulj' chosen for his State. There is no time limited
■within which the certification has to be made. The fact that a quorum of the Senate
may proceed to the despatch of business, notwithstanding any neglect or delay on the
part of a State to provide for its representation, will be a strong inducement and in-
centive for the prompt holding of elections and the return of senators to fill vacancies as
they arise.

Issue of writs.

12. The Governor of any State may cause writs to be
issued^ for elections of senators for the State. In case of the
dissolution of the Senate^ the writs shall be issued within
ten days from the proclamation of such dissolution.

Historical Note.— At the Adelaide sessions, 1897, in committee, Mr. Barton
introduced a clause (11a) as follows :—

^ " For the purpose of holding elections of members to represent any State in the
^enate, the (governor of the State may cause writs to be issued by such persons in such
lorm and addressed to such returning officer as lie thinks fit."

Mr. Isaacs thought that the writs ought to be issued by the Governor-General, as in
the case of writs for the House of Representatives. Mr. Holder moved an amendment
to provide that the writs should be issued by the Governor-General in Council ; but this
was negatived. (Conv. Deb., Adel., pp. 1149-50.)

430 COMMENTARIES ON THE CONSTITUTION. [Sec. 13.

At the S3'dney session, a suggestion by the Legislative Assembly of Victoria to omit
the clause was notadopted. (Conv., Syd., 1897, p. 989 ; and see id. pp. 391-4.) At the
Melbourne session, drafting amendments were made before the first report and after the
fourth report.

§ 82. "YTrits to be Issued."

As we have already seen, the whole executive supervision and conduct of a
senatorial election in each State, from the issue of the writ to the certification of
returns, is, subject to certain restraints, vested in the State authorit3% The only
restrictive mandate imposed on the Governor of a State is, that in case of a dis-
solution of the Senate, he must issue the writ within ten days from the proclamation
of such dissolution. No express provision has been made as to the limit of time within
which the writ issued by the Governor of a State should be returned to him. Section 5
provides that the Parliament shall be summoned to meet, after a general election, not
later than thirty days after " the day appointed " for the return of the writs. As we
have pointed out in our notes on that section, "the day appointed" there referred to
means the time fixed by the Governor-General in Coimcil for the i-eturn of the writs for
the election of members of the House of Representatives. There is no express or implied
power vested in the Governor-General in Council to appoint a day for the return of the
senatorial writs or for the certification of names of senators chosen.

§ 83. " Dissolution of the Senate."

The liability of the Senate of the Commonwealth to dissolution, in the circumstances
and under the conditions stipulated in section 57, is an important feature in its
constitution, which strikingly differentiates it from its great model and prototype — the
Senate of the United States of America. It has been said that the American Senate is a
continuous body, always in existence, and that its permanency and the length of the terms
of its members have given it a dignitj' possessed b}' no other legislative body now in
existence. (Foster's Comm. I. 493.) The Senate of the Commonwealth has been deprived
of that principle of undisturbed continuity. The system of retirement by rotation
makes the Senate of the Commonwealth, in theory, a continuous body ; but its liability
to dissolution is, to some extent, inconsistent with that theory. At the same time, when
the conditions prescribed by section 57 and the various safeguards surrounding the
exercise of the power therein conferred are considered, it will appear that the dissolu-
bility of the Senate is quite consistent with the teachings of political science and the
drift of modern political thought, and that what it loses by an occasional break in
continuity it will gain in representative character, public esteem and legislative
usefulness.

Rotation of senators.

13. As soon as may be after the Senate first meets, and
after each first meeting of the Senate following a dissolution
thereof, the Senate shall divide the senators^* chosen for
each State into two classes, as nearly equal in number as
practicable ; and the places of the senators of the first class
shall become vacant at the expiration of the third year, and
the places of those of the second class at the expiration of the
sixth year, from the beginning of their term of service ; and
afterwards the places of senators shall become vacant at the

§84.3 '^H^ SENATE. 431

expiration of six years from the beginning of their term of
service.

The election to fill vacant places shall be made in the
year at the expiration of which the places are to become
vacant.

For the purposes of this section the term of service of a
senator^^ shall be taken to begin on the first day of January
following the day of his election, except in the cases of the
first election and of the election next after any dissolution of
the Senate, when it shall be taken to begin on the first day ot
January preceding the day of his election.

UsiTED States. — Immediately after they shall be assembled, in conseqwence of the first
election, they shall be divided as equally as may be into three classes. The seats of the
senators of the first class shall be vacated at the expiration of the second year, of the
second class at the expiration of the fourth year, and of the third class at the expiration of
the sixth year; so that one third may be chosen every second year. —Const., Art. I.,
sec. 3, sub-sec. 2.

Historical Note.— Claose 13, Chap. L, of the Commonwealth Bill of 1891 was

sabstantially the same except that it was provided that the Senators for each State

" shall be di%-ided by lot into two classes." (Conv. Ueb., Syd. [1891], pp. 599-603.) At

the Adelaide session, 1897, the clause of 1891 was adopted almost verbatim, and in

Committee verbal amendments were made. (Conv. Deb, Adel., pp. 67fi-9, 1190.) At

the Sydney session, Mr. Glynn objected to the principle of rotation, as preventing the

Senate ever being in touch with public opinion. (Conv. Deb., Syd. [1897], p. 989.)

Drafting amendments were also made. At the Melbourne session, Mr. Deakin moved

the omission of the words " by lot." He thought that either provision should be made

for the three lowest on the poll to retire first, or the Senate should be left to manage the

matter itself. The amendment was carried. (Conv. Deb., Melb., pp. 1928-9.) Drafting

amendments were made before the first report and after the fourth report.

§ 84. "The Senate shall divide the Senators."

The Senate will be a continuous lx)dy so far as its continuitj- is not broken by a dis-
solution imder sec. 57. It may be assumed that such a break will only occur on rare and
abnormal occasions in the history of the Commonwealth. Permanency of succession
being its natural condition, arrangements have to be made for the periodical retirement
"f batches of senators so as to give effect, as far as possible, to the provisions of the Con-
stitution ; which provides that whilst senators shall be chosen for a term of six years,
half of them shall retire every three years. Six years of ser\-ice is the maximum term
for which all senators are elected, but the policy of the Constitution is to cause the
retirement of half the senators for each State every three years instead of all the senators
every six years. If all the senators were to retire at the same time there would be no
element of continuity in the constitution of the Senate. By the rotation principle that
advantage is secured, whilst there will also be, at short intervals, an infusion of either
fresh blood or restored \'itality in the personnel of the Senate by the return, every three
years, of newly chosen senators, or by the re-election of former senators strong in the
confidence of their respective States. As the members of the first Senate, and of every
Senate elected after a dissolution, are elected at the same time, they would, but for this
section, be all entitled to six years tenure of office so far as not interfered with by a dis-
solution. For the purpose of securing the retirement every three years of a moiety of the
senators for each State, an arbitrary' provision has been adopted that one-half of the
senators for each State in the first Senate, and every Senate succeeding a dissolution.

432 COMMENTARIES ON THE CONSTITUTION. [Sec. 13.

shall vacate their seats at the expiration of three years from the beginning of their term
of service. The Constitution does not itself specify the method of determining which
half of the senators, for each State, shall retire at the end of half their terms of service.
It requires the Senate to divide the senators for each State into two classes, as nearly
equal in number as practicable, and declares that the places of senators of the first class
shall become vacant at the expiration of the third year, and the places of those of the
second class at the end of the sixth year ; the Senate may divide them by lot or it may
divide them according to some recognized principle ; it may place the three senators for
each State who stood highest on the poll in one class, entitled to six years, and place the
other three senators for each State in the other class entitled to three years of office.

The words "as nearly equal in number as practicable" are intended to include the
possible contingency of the number of senators for each State being altered, under section
7, to an odd number ; or of a new State being accorded an odd number of senators. So
long as the number of senators for each State remains even, the equality will of course
be exact.

In the Draft Bill of 1891, as well as in the Bill as settled in the Adelaide and Sydney
sessions, the Senate was authorized to divide the senators into two classes bj' lot. At
the Melbourne session, the words " by lot " were omitted. The Senate has now, there-
fore, the unrestricted right to divide the senators for each State into two classes in
such manner as it thinks fit. The purpose of the amendment is shown by the following
extracts from the debates of the Convention : —

" The amendment I suggest need not occupj' more than a moment or two in discus-
sion. It is a blot on the face of a measure of this kind to require that the division of
the senators into two classes after the first election shall be made by lot. I could under-
stand that device being adopted in the absence of any other means of determining which
senators should have the longer period. But the poll itself ought to afford, or be taken
to afford, a reasonable indication of the wishes of the electors in this respect, and it is a
probable injustice, as well as a mistake, to fall back on the antique method of settling
questions of the kind. I move, therefore, the on)ission of the words ' by lot,' which
will leave it absolutely at the discretion of the Senate itself to determine, after it meets,
on what method the division shall take place. If the Drafting Committee think fit,
they can adopt the method of pi'oviding that the three highest on the poll should have
the six years' tenure. If that be the sense of the Convention, I will now simply submit
my motion." (Mr. Alfred Deakin, Conv. Deb., Melb., p. 19-28.)

" I think a great deal can be said in favour of the view the Hon. Mr. Deakin has
placed before the Convention. In a constitutional matter of this kind we ought not to
resort to deciding a question by lot unless there are no other means of determining the
matter. If the Convention are willing to agree to the amendment, it might be left to
the Drafting Committee to decide whether any provision for the division of the Senate
should take place, or whether the matter should be left to the senators themselves."
(Mr. R. E. O'Connor, id. p. 1928.)

Under the corresponding section of the Constitution of the United States of
America the following procedure was adopted : —

"On the original organization of the Senate, May 14th, 1789, a committee was
appointed to consider and report a mode of carrjdng into effect this constitutional
provision. In accordance with their report, the senators then sitting were arbitrarily
divided into three classes, the first including six members, and the second and third
seven each. Three papers, numbered 1, 2 and 3 respectively, were rolled up and put
into a box by the secretary ; and then one senator from each class drew a number. The
class which drew number I vacated their seats at the expiration of the second, the class
which drew number 2 vacated their seats at the end of the fourth, and those who drew
number 3 at the end of the sixth year. This plan, on accoimt of the number then
present at the Senate, left the first class, who vacated their seats at the expiration of
the second year, one less in number than each of the other two. To prevent any un-
necessary inequality in the chisses, when the senators from New York appeared, two
lots, one numbered 3, that of the small class, and one blank, were placed in the box.
After each senator had drawn a lot, the one who drew number 3 was placed in the small
class ; and the other drew again from the box containing numbers 1 and 2, taking his
place in the class whose number he drew. When the senators from North Carolina
appeared, there were then two classes of equal numbers, and one with a number in
excess of each. The numbers of the equal classes were put in the box. Ihen each

-§§ 84-So.]

THE SENATE. 433

senator drew one and was classed according to the number he drew. The classes were
then equal in number. Accordingly, when the senators from Khode Island appeared,
papers numbered 1, 2 and 3 respectively, were again placed in the box, from which each
senator drew one. The proceedings continued according to these successive methods
until the admission of the senators from Washington, North Dakota and South Dakota
at the same time. The same three numbers were then placed in the box, and drawn by
one senator from each of the new States. The secretary then placed in the ballot-box
two papers of equal size, numbered 1 and 3 respectively. Each of the senators from the
State which had thus drawn number 1 drew out a paper and was assigned in accordance
with the number he drew. The secretary then placed in the ballot-box numbers 1, 2
and 3, and each of the senators from the State which had drawn number 2 drew a lot
from the box. They were assigned in accordance with the number drawn b}- each ; and
the remaining lot with a blank was again placed in the box and the senators from the
remaining State drew from them. He who drew a number was assigned to the class
represented by it ; and he who drew a blank drew again from the box, which then
contained the other two numbers, and was assignea according to the number drawn.
When the senators from Idaho, Montana, and Wyoming were admitted at the same
time, the same proceedings took place. A custom has been thus established which will
be followed in the future." (Foster's Comm. I. p. 483-4.)

" The classification is settled by lot when the senators first appear from the new
States, iu the mode adopted in the first classification, so as to prevent two vacancies
occm-ring in the same State at the same time " (Journal Senate, Way 15, 1789, 26th ed.,
1820; Baker, A.C. p. 7.)

" The provision for the election of members by rotation was adopted unanimonsly
at the suggestion of Gorham and Randolph. Penn's Frame of Government for Pennsyl-
vania had provided that in the Council one-third of the members should be elected every
year, and at the time of the Convention the npper houses of New York, Virginia, and
Delaware, as well as of the first-named State, were filled in a similar manner. The idea
is said to have been borrowed from the senates of the cities in the Netherlands, who
had taken it from V'enice." (Foster's Comm. I. p. 471.)

" The rotation principle was in great favour among the Republicans of the seven-
teenth century. The earliest mention of it in English political history occurs in a
pamphlet published by James Harrington — author of ' The Commonwealth of Oceana ' —
in 16riO, which he entitled ' The Rota : or a Model of a Free State, or Equal Common-
wealth.' The nature of the scheme may be gathered from Anthony Wood's account of
the Rota Clnh, established by Harrington and his friends : — ' The model of it was that
the third part of the Senate or House should rote out by ballot every year (not capable
of being elected again for three years to come), so that every ninth year the Senate
would be wholly altered. No magistrate was to continue above three years, and all to
be chosen by ballot. This club of Common wealthsmen lasted till about 1659.' (Athenae
Oxon. vol. 11, p. 591.) Milton, who favoured a perpetual Senate, pointed out an
objection to this scheme in his pamphlet on ' The Ready and Easy Way to Establish a
Free Commonwealth,' published shortly after Harrington's appeared : — ' For it appears
not how this (retirement by rotation) can be done without danger and mischance of
putting out a great number of the liest and ablest, in whose stead new elections may
bring in as many raw, unexperienced, and otherwise affected, to the weakening and
much altering for the worse of public transactions.' " (G. B. Barton, Notes on the Draft
Bill, 1891, p. 25.)

" The Senate resembles the Upper Houses of Europe, and differs from those of the
British colonies and of most of the States of the Union, in being a permanent body. It
does not change all at once, as do bodies created by a single popular election, but
undergoes an unceasing process of gradual change and renewal, like a lake into which
streams bring fresh water to replace that which the issuing river carries out. This
provision was designed to give the Senate that permanency of composition which might
qualify it to conduct or control the foreign policy of the nation. An incidental and
more valuable result has been the creation of a set of traditions and a corpoi-ate spirit,
which have tended to form habits of dignity and self-respect. The new senators, being
Always in a minorit}', are readily assimilated ; and though the balance of power shifts
irom one part}' to another, according to the predominance in the State legislatures of
one or other party, it shifts more slowly than in bodies directly chosen all at once, and a
policy is therefore less apt to be suddenly reversed." (Bryce, Amer. Comm. I. p. 99.)

§ 85. "The Term of Service of a Senator."

After the Senate first meets, and after each first meeting following a dissolution, the
aenators are classified according to the scheme in the first paragraph in this section ;
thereupon the place or seat of each senator is identified \*-ith a t«rm of service annexed
to it. That term is not exhausted by the death, disqualification or resignation of the

434 COMMENTARIES ON THE CONSTITUTION. [Sec. 14.

senator. His successor is elected to occupy the place or seat for the remainder of the
term. By this paragraph of the section tlie precise date of the beginning of each term
of service is defined. The beginning of a term does not depend upon such uncertain
events as the date of the election, the return of the writs, or the swearing in of senators,
but on the words of the section itself. On the occasion of the first election of senators,
after the establishment of the Commonwealth, the term of service is deemed to have
begim on the first day of January preceding the day of election. On the occasion of
every general election of senators, the term of service is deemed to have begun on the
first day of January preceding the day of election. But, in the case of senators elected
to fill places or seats which will become vacant by effluxion of time, the term of service
is deemed to begin on the first day of January following the day of election. The new
term of service will thus begin at the expiration of the preceding term ; although the
elections will take place during the currency of the term. Hence it may arise that there
will be senators actually in office, their term being unexpired, and senators elect, chosen
to succeed the senators in office, but whose terms do not begin until the first day of
January following their election.

Further provision for rotation**.

14. Whenever the number of senators for a State is
increased or diminished, the ParHament of the Commonwealth
may make such provision for the vacating of the places of
senators for the State as it deems necessary to maintain
regularity in the rotation.

Historical Note. — A clause, in substantially this form, was inserted as a drafting
amendment at the Melbourne session, before the first report. After the fourth report it
was amended, by the substitution of " may " instead of " shall as soon as may be."

§ 86. " Further Provision for Rotation."

The number of senators for each State may be increased or diminished at any time
by the Federal Parliament, subject to the condition that equal representation of the
several Original States must be maintained, and that no Original State shall have less
than six senators (sec. 7). Whenever this is done, such further arrangements must be
made as may be necessary to maintain regularity in the rotation.

Casual vacancies.

15. If the place of a senator becomes vacant before the
expiration of his term of service, the Houses of Parliament of
the State^^ for which he was chosen shall, sitting and voting
together, choose a person to hold the place until the expiration
of the term^, or until the election of a successor^^ as herein-
after provided, whichever first happens. But if the Houses of
Parliament of the State are not in session at the time when
the vacancy is notified*^, the Governor of the State'", with the
advice of the Executive Council thereof^^ may appoint a
person to hold the place until the expiration of fourteen days

§87.]

THE SENATE. 435

after the beorinningr of the next session of the Parliament of
the State, or until the election of a successor, whichever first
happens.

At the next oreneral election of members of the House of
Representatives, or at the next election of senators^^ for the
State, whichever first happens, a successor shall, if the term
has not then expired, be chosen to hold the place from the
date of his election until the expiration of the term.

The name of any senator so chosen or appointed shall be
certified by the Governor** of the State to the Governor-
General.

UsmsD States. — And if vacancies happen, by resignation or otherwise, during the recess of the
legislature of any State, the executive thereof niay make temponuy appointments until
the next meeting of the legislature, which shall then fill such vacancies.— <7onst. Art. I. sec
3, sub-sec. 2.

Historical Note. — In the Commonwealth Bill of 1S91 (which providetl for the
election of Senators by the Parliament of States) clause 13, Chap. I., was as follows : —

" If the place of a Senator becomes vacant during the recess of the Parliament of the
State which he represented, the Governor of the State, by and with the advice of the
Executive Council thereof, may appoint a Senator to till such vacancy until the next
session of the Parliament of the State, when the Houses of Parliament shall choose a
Senator to fill the vacancy."

In Committee, it was suggested that it might be better that a vacancy should con-
tinue until the State Parliament met, rather than that the nominee principle should be
allowed, even temporarily, to invade the Senate. Mr. Barton moved the omission of the
provision for a temporary appointment, but this was negatived. (Conv. Deb., Syd.
[1891]. pp. 600-5.) At the Adelaide session (the Bill having provided for the direct
election of Senators) the clause was first drafted as follows :—

" If the place of a member of the Senate becomes vacant before the expiration of
his term of serWce, the Hou.ses of Parliament of the State he represented shall, sitting
and voting together, choose a successor, who shall hold office onlj' during the unexpired
portion of the term. And if the Houses of Parliament of the State shall be in recess at
the time when the vacancy occurs, the Governor of the State, with the advice of the
Executive Council thereof, may appoint some person to fill the vacancy until the be-
ginning of the next session of the Parliament of the State."

In Committee, the clause was postponed, in order that the Drafting Committee
might consider some suggestions that had been mawie for enabling a senator to be
chosen by the people at the next general election, State or Federal, in the State. It was
desired to have the vacancy filled by direct election as soon as possible ; but the ex-
pense of holding a special election throughout the State was an obstacle. (Conv. Deb.,
Adel., pp. 579-80.) Later on the clause was passed substantially in its present form.
(Conv. Deb.. Adel., pp. 1948-9, 1101.) Drafting amendments were made at the Sydney
session ; and also at the Melbourne session before the first report, and after the fourth
report.

§ 87. " The Houses of Parliament of the State."

If a vacancy arises in the representation of any State in the Senate, the Houses of
Parliament of the State, being in session at the lime when the vacancy is notified, are
enjoined to choose a person to hold the place provisionally, that is to sa\- until (I) the
expiration of the constitutional terra or (2) the election of a successor at the next
trieimial election of senators or at the next election of representatives, whichever event

436 COMMENTARIES ON THE CONSTITUTION. [Sec. 16.

first happens. The vacancies contemplated by this section are casual or extraordinary
vacancies, arising from accidents, sucli as death, disqualification or resignation, and not
those vacancies which take place at the regular expiration of senatorial terms. In thus
choosing persons, to provisionally fill vacant places, the members of the Houses of
Parliament of the State must sit and vote together — that is to say, the choice is made
at a joint sitting of the Chambers, at which the vote of a majority prevails.

Under the Constitution of the United States of America (Art. I. sec. 3) which pro-
vides that the Senate ' ' shall be composed of two senators from each State chosen by the
legislature thereof," it has been decided that the two Houses of the State Legislature
might, by joint resolution adopted by both of them, without the consent of the State
Governor, provide for the manner in which a senatorial election should take place ; that
the State Constitution could not limit the power of the legislature in that respect The
practice was adopted in several States of electing senators in joint convention of the
two legislative Houses, in case the Houses acting separately had failed to make a
choice. (Foster's Comm. I. p. 473.)

In 1866 an Act of Congress was passed for the regulation of senatorial elections. It
provides that, if the two Houses of a State legislature ai-e unable to agree in the choice
of a senator, a joint assembly of the two Houses shall be held, and the person who
receives a majority of all the votes of the joint assembly, a majority of all the members
elected to both Houses being present and voting, shall be declared duly elected. Under
this statute it has been held that an election is valid when made in a joint convention by
a majority of the members of both Houses, in the absence of a quorum of one of them.
(Foster's Comm. I. p. 475.)

§ 88. " The Expiration of the Term."

This expression means the end of the period of service, whether it be the three
yeai's of a senator of the first class or the six years of a senator of the second class ; it is
an event that depends on no fortuitous circumstances, being determined b}' the Consti-
tution itself, which provides that all terms shall expire on the thirty-first day of
December, either three j^ears from the beginning thereof or six years from the beginning
thereof. The exact date on which the term, annexed to each senatorial seat, begins and
ends is fixed by section 13. Every term, whether for three years or six years, begins [
on the first day of January of some year, and necessarily ends on the thirty-first day of
December in some year, except when the terms of all senators are prematurely ended by
a dissolution of the Senate. "The expiration of the term," if it happens before a-:
successor has been elected, renders the election of a successor unnecessary, because the
senators elected for the ensuing term, at the ordinary triennial election, then take their |
seats.

§ 89. " Election of a Successor."

The choice of a person, by the Houses of Parliament of a State, to take the place ofl
a senator who has ceased to act, is not regarded by the Constitution as the election of a j
successor ; it is merely a provisional arrangement to save the expense of a special State i
election. The time for the triennial election of senators might be close at hand, in which '
case the vacancy would be filled without any appreciable additional expense. If, i
however, the usual triennial election of senators is preceded by a general election of J
members of the House of Representatives, an equally convenient and prompter method I
of filling the extraordinary v^acancy is available. The legislative selection is only]
operative until the expiration of the term or the election of a successor, whichever first j
happens ; it is merely an ad interim appointment, in order to save the State from being <
short of a senator, on the one hand, and to save the State the cost of a special election,
on the other ; the legislative appointee is not a successor of the deceased, disqualified, or
resigned, senator, but merely a temporary holder of the office, pending the election of a^
successor by the people of the State.

§§89-92.]

THE SENATE. 437

Triennial senatorial elections are held at times partly determined by the Ckjnsti-
tation, and partly by the State legislaiures. Those times are determined by the
Constitution, to the extent that triennial senatorial elections to fill places to become
vacant must be held during the last year of the term of service ; sec. 13. The exact
date, within that year, of such elections, is not fixe<l by the Constitution. The
Parliament of each State is empowered to make laws determining the times of elections
of senators for the State ; sec. 9. The only restriction on the State power is the one
above quoted.

§ 90. "When the Vacancy is Notified."

When a casual vacancy happens in the representation of a State in the Senate, it is
the duty of the Pi-esident to notify the occurrence of such vacancy to the Governor of
the State interested. If the President is absent from the Commonwealth at the time it
is the dut3' of the Governor-General to notify the vacancy. (Sec. 21.) The happening
of this vacancy should, no doubt, be promptly notified by the Federal to the State
authorities, so as to enable the latter to take steps at once to fill it. Until the receipt
of the statutory notification, that cannot be done ; hence a delay in the notification
would delay a choice by the State legislature or an appointment by the State Executive
tc fill the place until the election of a successor. It is a principle of the Constitution
that the representation of States in the Senate should be maintained, as far as possible,
with unbroken continuity, and that no State should be, for any time longer than
absolutely necessary, short in its representation and consequently deficient in its
political strength in the Council of States.

.^ 91. " The Governor of the State may . . . appoint."

If the Houses of Parliament of the State, in the representation of which a casual
vacancy occurs, are not in session at the time when it is notified, the Governor of the
State, with the advice of the Executive Council thereof, may appoint a person to hold
the place for a temporary period ; that is until the expiration of fourteen days after the
^>eginning of the next session of the Parliament of the State, or until the election of a
^accessor, under the power conferred by the second paragraph of this section The clear
limitations of this section should prevent many questions arising, such as have arisen
under the Constitution of the United States. According to one American precedent the
Executive of a State may appoint a senator to fill an anticipated vacancy before it
actually occurs. (Case of Uriah Tracey, Taft's Senate Election Cases, p. 3 ; Foster,
I. p. 488. ) In Lanmans Case, however, it was held that the Governor of a State cannot,
during the recess of the legislature, appoint a senator to fill an expected vacancy
(CL and Hall [U.S.], 871 ; Baker, Annot. Const. 7 ) It has also been held that the
Governor of a State may receive the resignation of a meml>er of the House of Repre
sentatives of the Uniie«l States and cause a new election to be held to fill the vacancy-
without waiting to be notified of the vacancy by the House. (Mercer's Case, CL and Hall
tU.S.], 44 ; Edwards' Case, id. 92; Baker, Armot. Const., p. 6.) Xo such controversies
could arise under the Australian Constitution, under which it is obvious that the State
Legislature would have no jurisdiction to choose, or the State Executive to appoint, a
senator pro tempore until the actual receipt of a notification of the vacancy from the
Federal authorities.

5 92. " With the Advice of the Executive Council."

These words were inserte^l to make it plain that the provisional appointment of
senators, though vested in the Governor of the State, as head of the State Executive, is
not one which he should make according to his own personal judgment and discretion,
but that it is, in fact, a political appointment to be made by the State Executive,
according to the principle of ministerial responsibility. Such an appointment, made on
the ad\ice of a State ministry, having the confidence of the State Parliament, would

438 COMMENTARIES ON THE CONSTITUTION. [Sec. 16.

probably be one which the Houses of the State Parliament would make if they were in
session at the time. It may be pointed out, however, that even if the words at the head
of this note had not been inserted in the clause the result would have been precisely the
same ; no State Governor would venture to make such an important appointment with-
out the advice of his responsible ministers. The words have been inserted in strict
conformity with constitutional usage ; as the section creates a new power and function
the addition of the words "with the advice of the Executive Council" could not
possibly involve an infringement of any established prerogative of the Crown. (See § 60,
supra. )

§ 93. " The Next Election of Senators."

These words refer to the next choice of senators, by the suffrages of the people of
the State, on the occasion of a triennial election to fill places about to become vacant
by effluxion of time. It is to be noted that there is no special section in the Constitution
enacting, in so many words, that there shall be an election of senators, by popular vote,
every three years ; that follows as the necessary result of a combination of sections.
Thus section 7 provides that senators shall be chosen for a term of six years. This is
qualified by section 1.3, which provides for the classification of the senators for each
State after every general election of senators, according to which half of them will retire
every three years. By section 9 the Parliament of each State has exclusive power to
make laws determining the times of elections of senators for the State, subject to the
condition that elections to fill vacant places must be made in the year at the end of
which the places are to become vacant. The expressions " choosing of senators,"
" choosing the senators," "election of senators," "next election of senators," which
occur in Part II. of the Constitution, allude to the triennial elections to fill places about
to become vacant, as well as to general elections consequent on a dissolution.

At " the next general election of members of the House of Representatives," or at
" the next election of senators for the State," whichever first happens, if the senatorial
term has not then expired, the provisional appointment of " a person to hold the place "
is superseded by " the election of a successor " to hold the place from the date of his
election until the expiration of the term. The election of a successor to a deceased or
resigned senator, for the balance of the term, may thus possibly take place at a triennial
election, at the same time when three senators of the class in which the vacancj- has
occurred are elected for the ensuing term which begins on 1st January of the following
year. In such a case, it will of course be competent for the temporary holder of the
place to be a candidate for the balance of the term and also a candidate for the new term
which begins on the expiration of the current term.

§ 94. " Certified by the Governor."

In the United States, the returns from the State authorities, declaring that a certain
person has been elected senator, are only primd facie evidence of qualification.
(Spaulding v. Mead, CI. and Hall [U.S.] 157 ; Reed v. Cosden, id. lid'i.) The refusal of
the State executive to grant a certificate does not prejudice the right of a person entitled
to a seat. (Richards' Case, CI. and Hall [U.S.] 9-5 ; Baker, Annot. Const, pp. 10, 11.
See Note, § 74, supra.)

§ 95.] THE SENATE. 439

Qualifications of senator.

16. The qualifications of a senator^ shall be the same as
those of a member of the House of Representatives.

UsiTKD Statbs. — No person shall be a senator who shall not have attained the age of thirty
years, and been nine years a citizen of the Uniied States, and who shall not, when elected
be an inhabitant of that :>tate for which he shall be chosen. — Const. Art. I., sec. 3, sob-
sec. 3.

Canada. — ^Tbe qoaliflcations of a Senator dial! be as follows : —

(L) He shall be of the fall age of thirty years.

12.) He shall be either a natnral-bom subject of the Queen, or a snbject of the
Quren naturalized by an Act of the Parliament of Great Britain, or of the
Parliament of the United Kingdom of Great Britain and Ireland, or of
the Legislature of one of the Provinces of Upper Canada, Lower Canada,
Canada, -NOva Scotia, or Xew Brunswick, before the Union, or of the
Parliament of Canada after the Union :

(■^.) He shall be legally or equitably seised as of freehold, for his own use and
benefit, of lands or tenements held in free and common socage, or seised
or possessed for his own use and benefit of lands or tenements held in
franc-alleu or in roture, within the Province for which he is appointed,
of the value of four thousand dollars over and above all rents, dues,
debts, charges, mortgages, and incumbrances due or payable out of or
charged on or affecting the same :

(4.) His real and personal propert.v shall be together worth four thoosaiid
dollars over and above his debts and liabilities :

(5.) He shall be resident in the Province for which he is appointed :

(6.) In the case of Quebec, he shall have his real property- qualification in the
electoral division for which he is appointed, or shall be resident in that
division— B.X.A. Act, 1867, sec. 23.

Historical Note. — In the Commonwealth Bill of 1891 the qualifications prescribed
for a Senator differed in three respects from those of a member of the House of Repre-
sentatives :—(l.) He must have been of the age of 30 years — as against 21 years for
the other House ; (2.) He must have been resident in the Commonwealth for five years —
as against three in the other House; (3.) He must, if not natural-bom, have been
naturalized for five years — as against three years for the other House. In Committee
there was some debate as to the qualifications of residence and naturalization. (Conv.
Deb , Syd. [1891] pp. 605-10.)

At the Adelaide session, 1897, the clause was introduced substantially in ita present
form. In Committee, Mr. Walker moved an amendment requiring that a Senator should
be of the age of 25 years, but this was negatived. (Conv. Deb., Adel., p. 1191.)

At the Sydney session, a suggestion by the Legislative Council of Victoria, to add
" with the exception that he must be of the full age of 30 years " was negatived by 29
votes to 4 ; and a suggestion by both Houses of the Parliament of Tasmania, requiring
that Senators should be of the age of 25 years, was also negatived. (Conv. Deb., Syd.
[1897] pp. 989-90. ) The words " the same as " were added as a drafting amendment.

§ 95. " The Qualifications of a Senator."

Until altered by the Parliament the qualifications of a senator, being the same as
those of a member of the House of Representatives, will be as follows : —
(L) He must be of the full age of 21 years.

(ii. ) He must be an elector entitled to vote at elections of the House of Repre-
sentatives, or qualified to become an elector,
(iii.) He must have been for three years at least a resident within the limits of

the Commonwealth as existing at the time when he is chosen,
(iv.) He must be a subject of the Queen, either natnral-bom or for at least five
years naturalize<l under a law of the United Kingdom, or of a colonv
which has become or becomes a State, or of the Commonwealth, or of a
State.
In addition to these positive qualifications a senator must not be the subject of any
of those disabilities enumerated in sections 44 and 45.

440 COMMENTARIES ON THE CONSTITUTION. [See. 17.

Tlie federal constitution having fixed the qualification of members of the Federal
Legislature, no additional qualification can be added b}' the State Legislatures. (Barney
V. McCreery, CI. and H. LU.S.] 176; Turney v. Marshall. 1 Cong. El. Cas. [U.S ] 167 ;
Trumbull's Case, I'rf. 618. ) The constitution of Illinois (1848) provided that the judges
of the Supreme and Circuit Courts of the States should not be eligible to any other
office of public trust or profit in that state, or in the United States, during the term for
which they should be elected, nor for one year thereafter. The Federal House of Repre-
sentatives held this provision of the constitution of Illinois void, in so far as it applied
to persons elected members of the said House. (Turney v. Marshall, supra ; Trumbull's
Case, supra. Baker, Annot. Const, p. 5.)

Returns from the State authorities, showing that a certain pei'son has been elected
senator, are pri7na facie evidence of qualification only. (Spaulding v. Mead, CI. and
Hall, 157 ; Reed v. Cosden. id. 353.) The refusal of the Executive of the State to grant
a certificate does not prejudice the right of any person entitled to a seat. (Richards'
Case, CI. and Hall, 95 ; Baker, Annot. Const, pp. 10, IL)

Election of President.

17. The Senate shall, before proceeding to the despatch
of any other business, choose a senator to be the President*'*'
of the Senate ; and as often as the office of President becomes
vacant the Senate shall ao-ain choose a senator to be the
President.

The President shall cease to hold his office if he ceases
to be a senator. He may be removed from office by a vote
of the Senate, or he may resign his office or his seat by
writing addressed to the Governor-General.

United States.— The Vice-President of the United States shall be President of the Senate.—.
Const. Art. I. sec. III. sub-sec. 4.

Caxada— The Governor-General may from time to time, by instrument under the Great Seal
of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and
appoint another in his stead.— B.N. A. Act, 1867, sec. 34.

Historical Note. — The clause in the Commonwealth Bill of 1891 was substantially
the same, with additional provisions that "The President shall preside at all meetings
of the Senate ; and the choice of the President shall be made known to the Governor-
General by a deputation of the Senate." In Committee, Sir John Bray moved to omit
the words " by a deputation of the Senate," but this was negatived. (Conv. Deb., Syd.,
1891, pp. 610-1.) At the Adelaide session, 1897, the clause of 1891 was adopted
verbatim. At the Melbourne session, drafting amendments were made before the fir.st
report and after the fourth report.

§ 96. " Choose a Senator to be the President."

The Lord Chancellor or Lord Keeper of the Great Seal of England is the Prolocutor
or Lord Speaker of the House of Lords by prescription. It is singular, says May, that
the President of that deliberative body is not necessarily a member of it. It has even
happened that the Lord Keeper has officiated for years as Speaker without being raised
to the peerage. (May's Pari. Prac, 10th ed., 1893, p. 184.) Under the Constitution of
the United States the Vice-President of the Republic is elected by popular suffrage, at
the same time as the President ; he is next in succession to the President, and is ex offirio
the presiding officer of the Senate. The Republican Senate, like the aristocratic House
of Loi'ds, has no voice in the selection of its official head. By the Canadian Constitution
the (iovernor-General is authorized from time to time to appoint a senator to be Speaker
of the Senate and to remove him and appoint another in his stead. The Constitution of

§§96 97.] THE SENATE. 441

the Commonwealth vests in the Senate itself the power of choosing and removing its
President. The President is not elected for any particular term, but he will cease to
hold office (1) if he ceases to be a senator ; (2) if he is removed from office by a vote of
the Senate ; (3) if he resigns his office.

The duties of President are those usually assigned to and exercised by the presiding
officers of legislative botlies ; among these may be— to maintain order and decorum ; to
enforce the rules of debate ; to recognize a senator who wishes to speak and thus to give
him the floor ; to put the question before the Senate ; to ascertain and declare the will
of the Senate, either on the voices, or as the result of a division ; to appoint tellers to
take a division ; to supervise the officers of the House and see that the votes and
proceedings are properly recorded, so far as those diaties are not otherwise regulated by
the standing orders of the Senate, passed in conformity with the Constitution. (Foster,
Comm. I., p. 501.) One function in particular appears to be recognized as the particular
privilege of the presiding officer of the Upper House of every Parliament constructed on
the British model ; it is the right to present to the representative of the Crown a joint
address of both Houses. According to the English practice, when a joint address is to
be presented by both Houses to the Queen, the Lord Chancellor and the House of Lords
and the Speaker and the House of Commons proceed in state to tlie palace at the time
appointed. On reaching the palace the two Houses assemble in a chamber adjoining the
throne room, and when her Majesty is prepared to receive them the doors are thrown
open and the Lord Chancellor and the Speaker advance, side by side, followed by the
members of the two Houses respectively. The Lord Chancellor reads the address and
presents it to her Majesty, who then returns an answer, and both Houses retire. (May,
10th ed. p. 430.) More important, however, than such ceremonial functions will be the
duty of the President of the Senate to assist in the enforcement of the law of the
Constitution, and in particular to see that the pri\'ileges of the Senate, such as those
contained in sections 53, 54, 55, and 56, are not invaded.

The Constitution makes no express provision for the salary of the President. The
Federal Parliament, however, has ample power to appropriate a salary for the office
under section 51 — xxxix.

Absence of President.

18. Before or during any absence of the President®^, the
Senate may choose a senator to perform his duties in his
absence.

Historical Note. — In the Commonwealth Bill of 1891, the clause began " In case
of the absence of the President." In the Adelaide Bill of 1897 these introductorj- words
were omitted. At the Sydney session, the words " Before or during any absence of the
President " were introduced as a drafting amendment.

§ 97. " Absence of the President."

This section makes provision for the appointment of a senator to act during the
absence of the President. The Constitution is silent on the subject of permanent
executive officers of the Upper House. The Senate of the Commonwealth, unlike the
Senate of the United States, has been assigned no voice in the appointment of the
officials necessary to carrj- on the business of the House. Until ferleral legislation deals
with the matter, such appointments can be made only bj- the Executive Government of
the Commonwealth. The chief officers of the Upper House, generally, are the Clerk of
the Parliaments, the Gentleman Usher of the Black Rod, and the Assistant Clerk. The
Clerk of the Parliaments has to make true entries and records of tlie things done and
passed in the Parliaments. The Clerk Assistant has to attend to the table, with the

442 COMMENTARIES ON THE CONSTITUTION. [See. 19.

Clerk, and to take minutes of the proceedings and orders of the House. The Gentleman
Usher of the Black Rod has to assist in the introduction of members, and other cere-
monies ; he is sent to desire the attendance of the members of the Lower House at the
opening and proroguing of Parliament. He also executes orders for the commitment
of parties guilty of breaches of privilege and contempt. (May, 10th ed. p. 194.)

Resisjnation of senator.

19. A senator may, by writing addressed to the Presi-
dent, or to the Governor-General if there is no President or
if the President is absent from the Commonwealth, resign^^
his place, which thereupon shall become vacant^.

Canada. — A senator may, b3' writing under his hand addressed to the Governor-General,
resign his place in the Senate, and thereupon the same shall be vacant.— B.N.A. Act,
1867, sec. 30.

Historical Note. — A similar clause is in the Constitutions of all the Australian
colonies. In the Commonwealth Bill of 1891 the clause was substantially in the same
words ; at the Adelaide session of the Convention in 1897 it was introduced and passed
as it now stands.

§ 98. *' A Senator may . . resign."

The seat of a senator is vacated by a resignation addressed to, and delivered to, the
Governor of his State, It does not depend upon notice of acceptance. (Bledsoe's Case,
CI. and Hall [U.S.], 869 ; Baker, Annot. Const, p. 7.)

§ 99. " Shall become Vacant."

The Queensland Constitution Act, 1867, sec. 23, provides that if a member of the
Legislative Council should, for two successive sessions of the Legislature of the colony,
fail to give his attendance in the Council without the permission of Her Majesty or of the
Governor of the Colony, signified by the Governor to the Council, his seat in the Council
shall become vacant. A Councillor absented himself during the whole of three sessions,
having previously obtained leave of absence for a year, which period of time, in the event,
covered the whole of the first and part of the second session. The Privy Council held
that his seat was vacated on the ground that the permission did not cover two successive
sessions. ( Att. -Gen. [Queensland] v. Gibbon, 12 App. Cas. 442. )

Vacancy by absence.

20. The place of a senator shall become vacant if for two
consecutive months of any session of the Parliament he,
without the permission of the Senate, fails to attend the
Senate.

Canada.— The place of a senator shall become vacant . . . if for two consecutive sessions
of the Parliament he fails to give his attendance in the Senate.— B.N.A. Act, 18(i7, sec. 31.

Historical Note. — A similar clause is in the Constitutions of all the Australia
colonies. In the Commonwealth Bill of 1891, the clause was the same except that th^
absence specified was "for one whole session of the Parliament," and tliat the pcrmissiot
of the Senate was to be "entered on its journals." (Conv. Deb., Syd. [1891], p. 611.)
At the Adelaide session, 1897, it was introduced in the same words. In Committee, ol
Mr. Gordon's motion, " two consecutive mouths of any session '' was substituted for " one

§ 100.]

THE SENATE. 443

whole session " (Con v. Deb., AdeL, p. G80.) At the Sydney session, a suggestion by
the Tasmanian House of Assembly to substitute " thirty consecutive sitting days in any
session " was negatived. At the Melbourne session, after the fourth report, the words
" entered on its journals " were omitted.

Vacancy to be notified.

21. Whenever a vacancy happens in the Senate, the
President, or if there is no President or if the President is
absent from the Commonwealth the Governor-General, shall
notify the same to the Governor of the State in the repre-
sentation of which the vacancy has happened.

Historical Note. — The clause in the Commonwealth Bill of 1S91 was substantially
in the same words, and was adopted verbatim at the Adelaide session (1897). (Con v.
Deb., AdeL, p. 680.) At the Sydney session Mr Glynn suggested that there should be
a resolution of the Senate declaring the vacancy. This, however, was thought unneces-
sary. The word "forthwith," before "notify," was omitted as unnecessary. (Conv.
Deb., Syd. ^1897], pp. 99<)-l.) At the Melbourne session, before the first report, a
drafting amendment was made.

Quorum i°o.

22. Until the Parliament otherwise provides, the pre-
sence of at least one-third of the whole number of the
senators shall be necessarv to constitute a meetino^ of the
Senate for the exercise of its powers.

Ukttkd States. — A majority of each House shall constitute a quorum to do ba.siness ; but a
smaller number may iuljoum from day to day, and may be authorized to compel the
attendance of absent members, in such manner, and under such penalties, as each House
may provide.— Const. Arc I., sec 5, sub-s. 1.

Cas ABA.— Until the Parliament of Canada otherwise provides, the presence of at least- fifteen
senators, including the Speaker, shall be necessary to constitute a meeting of the Senate
for the exercise of its powers.- B.JJ.A. Act, 1867, sec. 35.

Historical Notk, — In the Commonwealth Bill of 1891 the clause was in the same
form, with the addition, after " senators." of the words " as proN-ided by the Constitu-
tion." At the .Adelaide session, 1897, the clause was introduced in the same form,
except that the words "until the Parliament otherwise provides" were omitted. In
Committee, on Mr. Gordon's motion, the words "as provided by this Constitution"
■were omitted. (Conv. Deb., AdeL, p. 682.) At the Sydney session, on the motion of
Mr. Higgius, the words " imtil the Parliament otherwise provides" were inserted.
(Conv. Deb., Syd. [1897], pp. 991-2.)

§ 100. "Quorum."

'• The [American] Constitution does not expressly provide as to how the presence of
a quorum shall be determined ; but it seems to me to imply, in the power of each House
to force the presence of members in order to form a quorum, that physical presence is
the test, whether or no the <nembers present all act. Such has not been the general
practice, however, to this time. It has been regarded as necessary that a quorum shall
not merely be present, but shall also act." (Burgess, voL II, p. 55.)

For discussion of the principle of /the quorum, see Note, § 137, infra.

444 COMMENTARIES ON THE CONSTITUTION. [Sec. 23.

Voting in Senate.

23. Questions arising in the Senate shall be determined
by a majority of votes, and each senator shall have one vote^^\
The President shall in all cases be entitled to a vote^°^ ; and when
the votes are equal the question shall pass in the negative.

UxiTBD States. — Each senator shall have one vote. — Const , Art. I., sec. 3, sub-s. 1.

[The President] shall have no vote, unless they be equally divided. —
Art. I., sec. 3, sub-s. 4.

Canada.— Questions arising in the Senate shall be decided by a majority of voices, and the
Speaker shall in all cases have a vote, and when the voices are equal the decision shall be
deemed to be in the negative.— B.N. A. Act, 1867, sec. 36.

Historical Notk. — In the Commonwealth Bill of 1891, the clause was substantially
the same. In Committee, Sir Samuel Griffith explained that the provision that the
President should have a vote was to secure the full representation of the State to which
he belonged. (Conv. Deb., Syd. [1891], pp. 611-2.) At the Adelaide session, 1897, the
clause was adopted in the same form. In Committee there was a short discussion of the
provision for the President's vote. (Conv. Deb., Adel., pp. 682-3. ) At the Melbourne
session, before the first report, the words " and each senator shall have one vote" were
transferred from clause 7.

§ 101. " Each Senator shall have one Vote."

"Members of the Senate vote as individuals, that is to say, the vote a senator
gives is his own and not that of his State. It was otherwise in the Congress of the old
Confederation before 1789 ; it is otherwise in the present Federal Council of the German
Empire, in which each State votes as a whole, though the number of her votes is propor-
tioned to her population. Accordingly, in the American Senate, the two senators from
a State may belong to opposite parties ; and this often happens in the case of senators
from States in which the two great parties are pretty equally balanced, and the majority
oscillates between them. Suppose Ohio to have to elect a senator in 1886. The Demo-
crats have a majority in the State legislature ; and a Democrat is therefore chosen
senator. In 1888 the other Ohio senatorsliip falls vacant. But by this time the
balance of parties in Ohio has shifted. The Republicans control the legislature ; a
Republican senator is therefore chosen, and goes to Washington to vote against his
Democratic colleague. This fact has largely contributed to render the senators indepen-
dent of the State legislatures, for as these latter bodies sit for short terms (the larger
of the two Houses usually for two years only), a senator has during the greater part of
his six years' term to look for re-election not to the present, but to a future State legis-
lature." (Bryce, vol. i., 97.)

§ 102. " The President shall . . be entitled to a Vote."

The object of providing that the President, unlike the Speaker of the House of
Representatives, shall be entitled to a vote in all cases, is that the State which he repre-
sents may not be deprived of the benefit of the constitutional privilege of equal represen-
tation. He is not given a casting vote as well, because that would give his State more
than equal representation. Some other provision had, therefore, to be made for the case
of an etiuality of votes ; so the Constitution declares that in that event the question
shall be resolved in the negative. This is based upon the universally recognized
principle that affirmative action, in any legislative body, must be supported b}' a
majority.

THE HOUSE OF REPRESENTATIVES. 445

PART III.— THE HOUSE OF REPRESENTATIVES.

Constitution of House of Representatives.

24. The House of Representatives^"^ shall be composed of
members directly chosen by the people of the Common-
wealth^"*, and the number of such members shall be, as nearly
as practicable^"^, twice the number of the senators^"*.

The number of members chosen in the several States
shall be in proportion to the respective numbers of their
people^"", and shall, until the Parliament otherwise provides^"^,
be determined, whenever necessary^"", in the following
manner : —

(i.) A quota shall be ascertained"" by dividing the
number of the people of the Commonwealth,
as shown by the latest statistics of the Com-
monwealth, by twice the number of the
senators :

(ii.) The number of members to be chosen in each
State"^ shall be determined by dividing the
number ot the people of the State, as shown
by the latest statistics of the Commonwealth,
by the quota ; and if on such division there is
a remainder greater than one-half of the
quota^^", one more member shall be chosen in
the State.

But notwithstanding anything in this section, five mem-
bers at least^^^ shall be chosen in each Origfinal State.

UsiTED States. — The House of Representatives shall be composed of members chosen everj-
second year by the people of the several States, and the electors in each State shall have the
qualifications requisite for electors of the most numerous branch of the State legislature. —
Const. Art. I., sec. 2, sub-sec. 1.

Representatives shall be apportioned among the several States which mav be included
within this Union, according to their respective numbers. . . . The number of
Representatives shall not exceed one for every thirty thousand, but each State shall have
at least one Representative.— /d. Art. I , sec. 2, sub-sec. 3 ; and see Amendment xiv.

Canada. — The House of Commons shall, subject to the provisions of this Act. consist of one
hundred and eighty -one members, of whom eighty -two shall be elected for Ontario, sbcty-
five for Quebec, nineteen for Nova Scotia, and fifteen for Xew Brunswick. — B.N.A. Act
1867, sec. 37.

On the completion of the census in the year one thousand eight hundred and seventy -one, and
of each subsequent decennial census, the representation of the four Provinces shall be re-
adjusted by such authority, in such manner, and from such time, as the Parliament of
Canada from time to time provides, subject, and accoraing to the following rules :

(1.) Quebec shall have the fixed number of sixty-five members :

2.) There shall be assigned to each of the other Provinces such a number of members
as will bear the same proportion to the number of it-s population (ascertiuned at
such census) as the number sixty-five bears to the number of the population of
Quebec (so ascertained) :

446 COMMENTARIES ON THE CONSTITUTION. [Sec. 24.

(3.) Ill the computation of the number of members for a Province a fractional part not
exceeding? one-half of the wliole number requisite for entitlinj; the Province to a
member sliall be rtisreg^arded ; but a fractional part exceeding one-half of that
number shall be equivalent to the whole number :

(4.) On any such readjustment the number of members for a Province shall not be
reduced, unless the proportion which the number of the population of the Pro-
vince bore to the number of the a<fgregate population of Canada at the then last
precedinff readjustment of the number of members for the Province is ascertained
at the then latest census to be diminished by one-twentieth part or upwards :
• (5.) Such readjustment shall not take effect until the termination of the then existing

Parliament.— B.N. A. Act, 1867, sec. 51.

Switzerland— The National Council is composed of representatives of the Swiss people,
chosen in the ratio of one member for each 20,000 persons of the total population. Frac-
tions of upwards of 10,000 persons are reckoned as 20,000. Every Canton, and in the
divided Cantons every half Canton, chooses at least one representative. — Swiss Const..
Art. 72.

Historical Note.— Chapter I. of the Commonwealth Bill of 1891 contained the
following clauses : —

24. "The House of Representatives shall be composed of members chosen every
three years by the people of the several States, according to their respective numbers ;
and until the Parliament of the Commonwealth otherwise provides, each State shall
have one Representative for every 30,000 of its people.

" Provided that in the case of any of the existing colonies of New South Wales, New
Zealand, Queensland, Tasmania, Victoria, and Western Australia, and the province of
South Australia, until the number of tiie people is such as to entitle the State to four
Representatives, it shall have four Representatives."

27. "When upon the apportionment of Representatives it is found that after
dividing the number of the people of a State by the number in respect of which a State
is entitled to one Representative there remains a surplus greater than one-half of such
number, the State shall liave an additional Representative."

29. " A fresh apportionment of Representatives to the States shall be made after
each census of the people of the Commonwealth, which shall be taken at intervals not
longer than ten 3'ears. But a fresh appoitionment shall not take effect until the then
next general election."

In Committee, the question of apportionment was shortl3' discussed. (Conv. Deb.,
Syd., 1891, pp. 612-.3. 639.) At the Adelaide session, 1S97, the Bill as introduced
provided for a quota based on a " two to one ratio " of the Houses, the clause being a-^
follows : —

"The House of Representatives shall be composed of members directly- chosen by
the people of the several States, according to their respective numbers ; as nearly as
practicable there shall be two members of the House of Representatives for every one
member of the Senate.

" Until the Parliament otherwise provides, each State shall have one member for
each quota of its people. The quota shall, whenever necessary, be ascertained by
dividing the population of the Commonwealth as shown by the latest statistics of the
Commonwealth bj^ twice the number of the members of tlie senate : and tlie number of
members to which each State is entitled shall be determined by dividing the population
of the State, as shown by the latest statistics of the Commonwealth, by the quota.

" But each of the existing colonies of New South Wales, Is'ew Zealand, Queensland,
Tasmania, Victoria, and Western Australia, and the province of South Australia, shall
be entitled to five Representatives at the least."

The "apportionment" clause of the Bill of 1891 was also introduced verbatim. On
the motion to go into Committee, the new provision was explained by Mr. Barton.
(Conv. Deb., Adel., pp. 435-7.) In Committee, it was explained again by Mr. O'Connor.
Sir Geo. Turner objected to the clause, both as being too rigidly mechanical, and as
checking the due increase of representatives with the increase in population. Mr.
Glynn approved of it, as the alternative of a fixed quota would soon lead to so large a
House that the provision for a minimum representation of the smaller States would
become valueless. Mr. Higgina argued that there was no possible' connection between
the numbers of the two Houses, and opposed the scheme because it seemed to be leading
up to a proposal for a joint sitting. Mr. Reid approved of it for the same reason, and
also because it would tend to prevent an inordinate growth of the size of the House.
Mr. Isaacs' objection was that the States where the growth of population was least

§ 103] THE HOUSE OF REPRESENTATIVES. 447

would suflfer a decrease in their representation. Mr. O'Connor pointed out that the
numbers of the House of Representatives might be increased at any time by increasing
the number of senators for each State. Sir John Downer supported the clause as
preventing the eflFacement of the Senate bj' an undue expansion of the House of Repre-
sentatives. Mr. Deakin thought the ratio excellent to begin with, but thought that the
clause might prove unduly rigid, and suggested that the words " Until the Parliament
otherwise provides " should be placed at the beginning. Sir Geo. Turner accordingly
moved to insert those words before the words " as nearly as practicable," but this was
negatived by 26 votes to 9. Mr. Solomon then proposed that representation in the
House of Representatives should be upon a sliding scale, instead of according to popula-
tion ; but this was not taken seriously and was negatived without division. Mr. Reid
proposed to reduce the minimum from " five " to " four," but subsequently withdrew
tlie amendment. (Con v. Deb., Adel., pp. 683-715.) At a later stage the clause was
verbally amended. (Id. p. 1191.)

At the Sydney session, a suggestion by the Legislative Assemblies of New South
Wales and Victoria, to omit the " two to one ratio," and insert a provision tliat, until
the Parliament otherwise proNades, each State shall have one representative for every
30,000 of its people, was negatived, after considerable debate, by 26 votes to 17. A
verbal correction was made. (Conv. Deb., Syd. [1897], pp. 420-53.)

At the Melbourne session, before the first report, the clause was verbally amended.
After the first report, an amendment was carried, on jMt. O'Connor's motion, by which
the words " chosen by the people of the Commonwealth" were substituted for " chosen
by the people of the several States ; " and the quota and re-apportionment provisions
were recast into a separate clause, 24a, but in substantially their present form. Sir
George Turner then proposed again to omit the "two to one ratio,' and substitute a
provision that until the Parliament otherwise provides, each State shall have one
Representative for every 50,000 of its people. This was negatived, after debate, by
2.5 votes to 10. The re-apportionment clause was then struck out, being provided for
in the quota clause. (Conv. Deb., Melb., pp. 1827-38.) After the fourth report, the two
clauses (24 and 24.\) were condensed into one, with verbal alterations.

§ 103. "The House of Representatives.'

As the Senate is the legislative organ representing the States, so the House of
Representatives is the legislative organ representing the nation. This appears from the
exact wortls of the Constitution. The Senate is composed of an equal number of senators
" for Ccich State," directly chosen by the people of the State (sec. 7). The House of
Representatives is composed of members directly "chosen by the people of the Com-
monwealth," and the number of members chosen in the several States is required to be
in proportion to the respective numbers of the people. In one chamber the States are
equally represented. In the other chamber the people are proportionatelj' represented.
The Senate represents the States as political units. The House represents the people as
individual units. /

In declaring that the House of Representatives is chosen by the "people of the
Commonwealth," the Constitution follows the precedent of Switzerland, which declares
that the National Council represents "the Swiss people;" whereas the House of
Representatives in the United States is "chosen by the people of the several States" —
a phrase which does not so clearly express its national element.

In our review of the meaning of the phrase, " Federal Commonwealth " (Note, § 27
xupra), we have seen that the Commonwealth is a community created on the model of a
national State with a federal structure ; — National in uniting the people, Federal in
uuituig the States, and, for certain purposes, maintaining the autonomy and individuality
of each State, and assigning to each State a share in the dual system of government.
It is hardly necessary once more to emphasize the principle that the Commonwealth

448 COMMENTARIES ON THE CONSTITUTION. [Sec. 24.

as a political State should not be confused with the Federal Government. The Federal
Government, consisting of three divisions— the legislature, the executive, and the
judiciary — is charged with the duty of exercising certain defined powers and functions,
assigned to it by the Commonwealth in and through the Constitution.

The Federal Government is only one part of the dual system of government by
which the people are ruled ; the other parts of the dual system are the State Govern-
ments, charged with the duty of exercising the residuary powers and functions of
government, reserved to them by the Commonwealth in and through the Constitution.

The House of Representatives is one of the two Chambers of the legislative
organization of the Federal Government. It gives particular force and expression to
what may be described as the national principle of the Commonwealth. In that great
assembly the nat^ional principle will find full scope and representation. Its operation
and tendency will be in the direction of the unification and consolidation of the people
of the Commonwealth into one integrated whole, irrespective of State boundaries. In its
constitution it represents "the people of the Commonwealth," as distinguished from
"the people of the States." The natural bent and inclination of its policy will,
therefore, be to regard its constituents as one united people ; one in community of rights
and interests ; one in their title to the equal protection of the law ; one in the claim to
fair and beneficent treatment ; one in destiny. On the other hand, the Senate, as well
as -the High Court, will tend to check any unconstitutional encroachments on the
reserved realm of provincial autonomy. If in both chambers the people had been
represented in proportion to their numbers, the practical result would have been the
establishment of a unified government, in which the States, as political entities, would
have been absolutely unrecognized, and would have been soon reduced to a subordinate
position. The Convention was entrusted with no such duty, under the Enabling Acts
by which it was called into existence ; its mandate was to draft a Constitution in which
the federal, as well as the national elements, were recognized.

The House of Representatives is not only the national chamber ; it is the democratic
chamber ; it is the grand depository and embodiment of the liberal principles of govern-
ment which pervade the entire constitutional fabric. It is the chamber in which the
progressive instincts and popular aspirations of the people will be most likely to make
themselves first felt. This characteristic is not founded on any difference in the
franchise of the House of Representatives from that of the Senate, because both
franchises are the same ; it arises from the fact that, by the Constitution, it is expressly
intended to be such a House, and that by its organization and functions it is best fitted
to be the arena in which national progress will find room for development.

The House of Representatives of the Commonwealth bears a close resemblance to
the House of Representatives of the United States of America, and occupies the corres-
ponding position in the scheme of government.

The Housk of Commons and the House of Representatives Compared. — We
will now proceed to draw attention to certain features in the constitution and functions
of the House of Representatives in which it resembles the House of Commons, and
certain other features and functions in m hich it differs from that historic Chamber : —

Resemblance. — The memhers of both the House of Commons and the House of Repre-
sentatives are elected hy the people, voting in national constituencies, and conseciuently
they represent national elements. They both exercise supreme supervision over the
finances. This is secured by the exclusive power of originating proposed laws appro-
priating public money and imposing taxation, and in the inability of the House of
Lords in all cases, and of the Senate with certain exceptions, to amend such proposed
laws. This control of the finances will tend to carry with it the predominant control of
the Executive, and hence the system known as Responsible Government.

Differences. — The House of Commons is the National Chamber of the Empire, exer-
cising in conjunction with the other branches of the Imperial Parliament unlimited.

^§ 103-104.] THE HOUSE OF REPRESENTATIVES. 449

unchallengeable sovereign authority. The House of Representatives is the National
Chamber of the Commonwealth, which is merely an outlying portion of the Empire, the
Parliament of which is endowed only with restricted and enumerated powers, delegated to
it through the Federal Constitution by the parent Parliament. The House of Represen-
tatives is a division of a subordinate law-making body, whose mandates are of the
nature of bj'-laws, valid whilst within the jurisdiction conferred upon it by the Consti-
tution, but invalid if they go beyond the limits of such jurisdiction. (Dicey, Law of the
Const, p. 137.)

Another important point of difference between the House of Commons and the
House of Representatives has been pointed out by Dr. Burgess. Since the reform and
revolution of 1832, the House of Commons, he says, has occupietl a double position in
the English system. It is one branch of the legislature, and it is also the sovereign
organization of the State. In the former capacity it has no more power than the House
of Lords ; in the latter it is supreme over the King and the Lords. The great result of
the reform movement of 1832 is, he contends, that the people became politically-
organized in the House of Commons. In other words, the organization of the State,
within the Constitution, is now the same as was its organization back of the Consti-
tution. The House of Commons, newly elected after a dissolution on a particular prin-
ciple, or measure, is the political people organized through their representatives in that
House. There is thus, he sajs, a correspondence between the revolutionary organiza-
tion of the State, back of the Constitution, and its continuing organization within the
Constitution. (Burgess, Political Sci. vol. i. p. 95; vol. ii. pp. 38-9.) At the beginning
of its constitutional career, the House of Representatives will not occupy such a com-
manding relative position as the House of Commons, for the reason previously staterl
that its powers are limited by the Constitution. Its capacity to initiate reforms with a
view to the acquisition of further power is, however, with the exceptions mentioned in
sec. 128, unbounded. It cannot, like the House of Commons, through ministers having
its confidence, intimidate or coerce the Upper House and the Crown to agree to a pro-
posed amendment of the Constitution ; the ultimate determination of all such constitu-
tional proposals is vested in a body of persons, defined by the Constitution as a majority
of the electors of the Commonwealth voting, including majorities in more than half the
States. Such majorities constitute the ^uowj-sovereign organization of the Common-
wealth, considered as a political State. But the House of Representatives can originate
such constitutional proposals, and cause them to be submitted to the Federal electors
for their decision ; and it cannot be doubted that the influence of the members of such a
strong chamber in securing an affirmative vote in favour of its proposals will be very
powerful indeed.

§ 104. " The People of the Commonwealth."

Attention may be drawn to the above expression " the people of the Commonwealth "
for the purpose of contrasting of it with another, to be found in section 7, "the people of
the States." (Note, §68, mipra.) A federation is, as we have already seen, defined by
some authorities as a State having a dual system of government ; (see " Federal," § 27,
supra) ; hence, in a federation it is said there is a dual citizenship. It follows that each
natural-bom or naturalized subject of the Queen permanently residing within the limits
of the Commonwealth is entitled to be considered as a citizen of the Commonwealth, and,
at the same time, a citizen of the State in which he resides. Every such person thus
owes a double duty, and can claim a double right ; a duty to the Commonwealth, as the
great community embracing all the people, to yield obedience to its laws, to assist in its
defence, and to take part in promoting its interests ; a right to claim from the Common-
wealth the equal protection of its laws, and to share in the honour and advantage of its
rule. Such a person also owes a duty to the particular State in which he resides, regard-
ing that State as a part of the Commonwealth, guaranteed to possess and enjoy certain
privileges and immunities ; a duty to obey its laws, and at the same time to assist in
29

i-/

450 COMMENTARIES ON THE CONSTITUTION. [Sec. 24.

defending the State domain against unconstitutional invasion ; a right to demand from
the State the equal protection of the laws of the State. In one capacity such a person
is described bj^ the Constitution as one of " the people of the Commonwealth ;" in th©
other he is one of " the people of a State." From this dual citizenship, and, in order to
assist in its preservation, every person living under such a form of government has a
duality of political rights and powers. He is entitled, not only to assist in carrying on
tlie government of his State, as a part of the Conmionwealth, but to assist in the govern-
ment of that wider organization of the nation itself. In the latter work, taken and
considered by itself, he has also a dual right and power ; viz., to join in returning
members to the House of Representatives in which centralizing, consolidating, national-
izing, and progressive elements of the community are represented, and also to assist in
returning members to the Senate, in which the moderating, restraining, conserving and
provincial elements of the conununity are represented. The duty of a citizen having
these dual functions, and of the Federal Parliament so dually constituted, will be to
reconcile and harmonize all these apparently conflicting yet necessary and inevitable
forces.

§ 105. '' As Nearly as Practicable."

These words are not intended to allow the Parliament a discretionary latitude in fixing
the number of the members of the House of Representatives, but to provide for the
slight variation that may be caused by the provision for the minimum representation of
a State, and also by the provision for representing fractions of a quota. According to
the mode provided in this section for determining the number of members, the " quota"
of representation is to be ascertained by pure arithmetic. So far, the words, " as nearly
as practicable " are tmnecessary. But the quota so obtained, though it of course divides
exactly into the population of the Commonweal tli, is not likelj' to divide exactlj'
into the population of each State. There will probably be fractions in each State,
arithmetically entitled to a fraction of a member ; and whether these fractions are
ignored altogether, or whether provision is made — as in this section — for assigning a
member to any fraction greater than one-half the quota, the result may be to slightly
disturb the "two to one ratio." A further, and, at present, more considerable element
of disturbance is the provision that each State shall have at least five representatives.
On a population basis, Tasmania is at present onlj' entitled to three representatives ;
and her two additional members, not being allowed for by the quota calculation, go to
increase the number of members bej'ond the " two to one ratio."

The Parliament, when it makes " other provisions " for determining the number of
members, will be bound by the constitutional provision to make their number " as nearly
as practicable twice the number of the senators ; "' and the clear intention is that the
absolute ratio should only be departed from, so far as may be necessary to adjust frac-
tional and minimum representation.

§ 106. *« Twice the Number of the Senators."

There is a constitutional limit to the number of members of the House of Repre-
sentatives, viz., that it shall be, as nearly as practicable, twice the number of the
senators ; in other words there must be two representatives to one senator. This
provision was described in the course of the Convention Debates as tlie "two to one
ratio." In this respect, the rule regulating the numerical strength of the Australian
House of Representatives differs both from that of the American House of Representa-
tivea and from that of the Canadian House of Commons.

Under the American Constitution the first House of Representatives consisted of 66
members, of which there was one for every 30,000 of the qualified inhabitants. Congress
was given general power to apportion representatives among tl»e several States acconi-
ing to their respective nimibers, and could therefore increase the number of representa-
tives without reference to the number of senators. This power was subject to one

§ 106.] THE HOUSE OF REPRESENTATIVES. 451

limitation ; viz., that there should never be more than one representative for every
30,000 inhabitants. After the census of 1790 the first Congressional apiwrtionment
took place. The number of representatives was increased to 106, which, divided
among the aggregate population, gave one representative for every 33,000. After the
census of 1810 the number of representatives was raised to 183, which, divided among
the population, gave one for every 35,000. In 1820 the number of representatives was
was brought iip to 213, which gave one to every 40,000. In 1830 the representatives
were increased to '242, or one for every 47,700. In 1840 the representatives were
reduced to 223, or one for every 70,680. In 1850 the representatives were increased to
233, or one for every 93,000. (Sheppard's Constitutional Text Book, 1863.) In the
latest Apportionment Act, based on the census of 1890, the number of representatives
was fixed at 357. which gave one representative to every 173,900. (Statesman's Year
Book, 1899, p. 1 130.) So, as the population went on increasing, the number of members to
divide among the population has from time to time increased. The increase of members,
however, does not proceed in proportion to the increase of the population. The pro-
portion of representatives to population has been gradually diminished, from one
representative for every quota of 30,000 in 1789, to one representative for every
quota of 173.900 in 1890.

The British North America Act, 1867, sec. 37, provided that the Dominion House
of Commons should at first consist of 181 members, of whom 82 were assigned to
Ontario, 65 to Quebec, 19 to Nova Scotia, and 15 to New Brunswick. By sec. 52 of the
same Act power was given to the Parliament of Canafia to increase the number of the
members of the Hou.se of Commons, subject, however, to the condition that the pro-
portionate representation prescribed by the Act should not be thereby disturbed. The
basis for re-adjustment after each decennial census is that Quebec shall always have the
fixed number of 65 mem1>ers, and that each of the other Provinces shall be assigned the
number of members which bears the same proportion to its population as the number 65
bears to the population of Queliec — a fractional part exceeding half a quota being
regarded as a whole quota. (See p. 445, mi//ra. )

On the basis of the census of the Dominion taken in April, 1891, and in accordance
with a redistribution bill passed in 1892, the House of Commons consists of 213 members
— 92 for Ontario, 65 fop Quebec, 20 for Nova Scotia, 14 for New Brunswick, 7 for
Manitoba, 6 for British Columbia, 5 for Prince Edward Island, and 4 for the North-
West Territories. The ratio of members to population is now one to 22,688. (States-
man's Year Book. 1899, p. 221.)

In the Draft Bill of 1891 it was provided (as in the Constitution of the United
States) that there should be one representative for every 30,000 of the population of
the Commonwealth, but that this quota should be alterable by the Federal Parliament ;
there was no provision made for any maximum number of members. As the population
increased, the representation could be increased by an additional member for every
30,000.

It has been estimated that, if the Commonwealth had been established in 1897 and
the House of representatives constituted on the basis of one member for every 50,000
of the population, that House would have consisted of about 71 members, of which New
South Wales would have had 26, Victoria 24, Queensland 9, South Australia 7, Tasmania
3, Western Australia 2. In 1901, on the assumption that the past rates of increase of
population continued. New South Wales would have 32, Victoria 27, Queensland 13,
South Australia 9, Western Australia 4, and Tasmania 3. total 88. According to the
same average of increase the House of Representatives would, by the year 1941, have a
total of 446 members. (Mr. R. E. O'Connor, Conv. Deb., Adel., 1897, p. 685 )

This Constitntion places no limit on the power of the Parliament to increase the
BJze of the House of Representatives, except that the Senate must be increased in the
same proportion, so as to preserve the "two to one ratio." It, however, effectually
prevents any such rapid automatic increase as is foreshadowed in the calculations above

452 COMMENTARIES ON THE CONSTITUTION. [See. 24.

referred to. The number of representatives depends upon the number of senators, and
the number of senators does not increase automatically at all. The number of senators
may, however, be increased in two ways — either by increasing the number of senators
for each State or by increasing the number of States.

The Parliament may increase or diminish the number of senators for each State,
provided that equal representation of the original States shall be maintained and that
no Original State shall have less than six senators (sec. 7). The number of senators may
also be increased by the admission or establishment of new States (sec. 121). There are
thus two methods by which the number of senators may be increased ; (.1) by an Act
of the Federal Parliament increasing the number of senators for each existing State,
and (2) by an Act of the Federal Parliament, admitting or establishing a new State or
States and thus introducing additional senators. Accordingly, though apparentlj' the
number of representatives is determined by the number of Senators, yet the fact that
the number of senators may be increased to any extent by the Parliament makes the
number of the House of Representatives equally elastic (see Note, § 116, infra).

This " two to one ratio " is a rigid element and basic requirement of much import-
ance and significance ; it is embedded in the Constitution ; it is beyond the reach of
modification by the Federal Parliament, and can only be altered by an amendment of
the Constitution. It was adopted after due consideration and for weight}- reasons. It
was considered that, as it was desirable, in a Constitution of this kind, to define and
fix the relative powers of the two Houses, it was also but fair and reasonable to define
their relative proportions, in numerical strength, to each other, so as to give that pro-
tection and vital force by which the proper exercise of those powers could bo legally
secured. It was considered extremely necessarj* to prevent an automatic or arbitrary'
increase in the number of members of the House of Representatives, by which there
would be a continually growing disparity between the number of members of that
House and the Senate ; and to give some security for maintaining the numerical strength,
as well as the Constitutional power, of the Senate. It was argued that if the number of
the members of the Senate remained stationary, whilst the number of the members of
the House of Representatives were allowed to go on increasing with the progressive
increase of population, the House would become inordinately large and inordinately ex-
pensive, whilst the Senate would become weak and impotent. It was said that to allow the
proportion of the Senate towards the House of Representatives to become the merest
fraction, would in course of time lead practically to the abolition of the Senate, or
at any rate, to the loss of that influence, prestige, and dignity to which it is entitled
under the Constitution. In reply to the argument founded on the danger of disparity,
arising between the number of members of the Senate atid the number of members of the
House of Representatives, attention was drawn to the Constitution of the United States
of America under which Congress had unlimited power to increase the number of members
of the House, without increasing the number of senators ; which power had not been reck-
lessly or improvidently exercised. The power and status of the Senate had not been pre-
judiced by the gradual increase in the number of representatives. In answer to this,
it was contended that the Senate of the United States of America had maintained its
position in the Constitution largely owing to its possession of certain important judicial,
legislative and executive powers, which had not been granted to the Senate of the
Commonwealth, such as the sole power of trying cases of impeachment; the power to
ratify or to refuse to ratify treaties made by the President with foreign nations ; and the
power to refuse to confirm executive appointments made bj' the President. These
powers were the main sources of the strength of the American Senate, which prevented
any wide disparity in numbers between it and the House of Representatives from causing
it to drift into the insignificance of a small committee or board. The Senate of tlie
Commonwealth, being deprived of such powers, should be protected against the dangei
of disparity in numbers. As regards the necessit}', which might hereafter arise, of
increasing the number of representatives to meet the demands of an increased and

§§ 107-108.] THE HOUSE OF REPRESENTATIVES. 453

increasing population, it was not likely that the Senate would deny an increase in the
House of Representatives when it secured an increase itself, (Conv. Deb., AdeL, pp.
435-7, 683 98 ; Sydney, pp. 429-52.)

§ 107. " In Proportion to the Respective Numbers of
Their People."

The number of members chosen by the people of the Commonwealth in the several
States is to be in proportion to the respective numbers of their people. The words of
the corresponding section in the Constitution of the United States of America (Art. I.
sec. ii. sub-sec. 3), are, that representatives shall be apportioned among the several
States of the Union "according to their respective numbers," provided that their
representation should not be greater than the proportion of I to 30,000. In the Draft
Bill of 1891, part III. sec. 34, it was proposer! that representatives should be chosen by
the people of the several States, "according to their respective nimibers," proNided that
their representation should not be greater than 1 to SO.OiK). In the Con!«titution of the
United States it was further proWded that each State should have at least one repre-
sentative ; and, until the first enumeration was made, the number of members for each
State was specified in the Constitution itself.

Every scheme of apportionment, founded on a fixed ratio, such as one representative
for every :10,000 inhabitants, was open to the objection that in almost every State theie
would probably be thousands of persons constituting a fraction of the given number,
who would be absolutely unrepresented in the House. This was the actual experience
of the United States of America. Accordingly, different methods of providing for and
dealing with these fractious were suggested and tried. The first apportionment Bill
was introduced into the House of Representatives in 1790. It gave one representative
for ever}- 30,000 inhabitants, and made no provision for the representation of the
remakining fractions ; thus a State containing a population of one million would be
assigned 33 representatives, representing 990,000 in the million, leaving 10,000 unrepre-
sented. The Senate amended the Bill by allowing additional representatives to the
States having the largest fractions ; the House concurred in the amendment, but the
Bill was eventually vetoed by President Washington. (Marshall's Life of Washington,
vol. Y. pp. 320, 323 ; cited Foster's Comm. vol. I. pp. 394-7 ; Webster's Report of the
Senate, 1832, cited Foster, pp. 436-8.)

Accordingly, the basis of apportionment in the United States ignored fractious
altogether until 1842, when a new rule was adoptetl on the lines of Daniel Webster's
Report to the Senate, made ten years previously. The new rule made the provision as
to fractions which is adopted by this Constitution, and the purpose of which cannot be
explained more clearly than in the words of Webster's Report : —

"It may be clearly expressed in either of two ways. Let the rule be, that the
whole number of the proposed House shall be apportioned among the several States,
according to their respective numbers, gi^•ing to each State that number of members
which comes nearest to her exact mathematical part, or proportion ; or, let the rule be,
that the population of each i^tate shall be divided by a common divisor, and that, in
addition to the number of members resulting from such di\nsion, a member shall be
allowed to each Stale whose fraction exceeds a moiety of the divisor." (Webster's
Report, cited Fosters Comm., vol. 1. p. 445.)

§ 108. " Until the Parliament Otherwise Provldes."

These words empower the Parliament to alter the provisions of sub-sections 1 and 2,
which deal with the manner of determining the number of members chosen in the several
States. This power of alteration is, however, confined within very narrow limits by the
permanent and absolute pro\-i8ions of the section. The rules which are determined
absolutely by the section, and which the Parliament has no power to alter, are : —

454 COMMENTARIES ON THE CONST^ITUTTON. [Sec. 24.

(1.) That the whole number of ineinbeis shall be, aa nearly as practicable, twice

the number of the senators :
(2. ) That the numbei- of members chosen in the several States shall be in pro-
portion to the respective numbers of their people :
(3.) That five members at least shall be chosen in each Original State.
The provisions for ascertaining the quota, and for dealing with the question of
fractions, may only be altered subject to those absolute rules ; so that the power of the
Parliament to alter the basis of apportionment is very small.

§ 109. " Be Determined Whenever Necessary."

The Constitution does not expressly say by whom this determination is to be made.
Whenever it is " necessary " to re-apportion the members, the only data needed are the
"latest statistics of the Commonwealth," showing the population of the Commonwealth,
and of each State. Given those figures, the rest is mere arithmetic ; and according to
the maxim — '' Id cerfum est quod certum reddi potest"— the numbers are then already
determined.

Parliamentary authority would, however, appear to be required for two purposes :
— (1) To provide for the preparation of the latest statistics, and to identify those
statistics by law ; and (2) to declare when re-apportionment is "necessary." As the
statistics are at the root of the representative system, it is important that they should
be clearly recognized and identified by Act of Parliament ; and even when that has
been done, it would be most undesirable that the Executive should be left to decide for
itself whether re-apportionment were necessary.

The Constitution does not prescribe any regular interval for re-apportionment, nor
does it require that re-apportionment should take place at every general election, if
later statistics are available ; it merely provides that apportionment shall be made
"whenever necessary," and that when so made it shall be according to the latest
statistics. The Parliament is appai'ently left to judge for itself when the necessity
arises. The only reliable basis of population statistics is a census ; and it may be pre-,
sumed that the Parliament will provide for a periodical— probably a decennial— census,
and will require that after each census the number of members for each State shall be
determined afresh. Such determination, when made, will of course not take effect till
the next general election.

§ 110. " A Quota shall be Ascertained."

The quota is that number of the aggregate population of the Commonwealth which,
considered as a unit, is entitled to one member in the House of Representatives. It is
obtained by dividing the population of the Commonwealth by twice the number of
senators. The population is that shown in the latest statistics. The number resulting
from the division, the quotient, is called the quota. This is the ratio of representation,
there being one representative for every quota of the population of the Commonwealth.
The method of obtaining the quota may be shown as follows : —

Twice the number o(
senators.

Population of Common-
wealth.

Quota

3,717,700

51,635

(or exactly, 51,634-72)

It seems clear that strict accuracy requires that the quota should be calculated out
to an exact decimal fraction. To neglect the fraction might, in occasional instancee,
just make the difference of a representative more or less. Thus, suppose that the exact
quota were 50,000'4, and that the population of one of the States were 1,025,001. If the

$§ 110-113.] THE HOUSE OF REPRESENTATIVES. 455

.juota were taken at its integral value, 50,000, the State would be entitled to 21
representatives— 20 in respect of 1,000,000 inhabitants, and one more in respect of the
remainder of 25,001, which is greater than one-half of the quota. But if the quota is
taken at its exact value the remainder will only be 24,993, or less than one-half the
quota, and the State will only be entitled to 20 representatives.

This method of ascertaining the quota may be altered by the Federal Parliament
and another substituted. But the •' two to one ratio," and the rule requiring the
distribution of representatives chosen in the several States in proportion to the respective
numbers of their people, cannot be interfered with except by an amendment of the
constitution.

§ 111. ** Members to be Chosen in each State."

The quota being ascertained, it becomes a mere matter of arithmetic to determine
the number of representatives to be chosen in each State. The quota, say fifty thousand,
is divided among the population of the State as shown by the latest statistics of the
Commonwealth. The result of the division is the number of representatives to be
chosen in the State — subject, however, to the provision that each State shall have at
least five representatives, and subject also to the provision as to fractions.

§ 112. " A Remainder Greater than One-half of the Quota."

It is provided that if, in any such division of the quota among the population of the
State, the remainder left is greater than one-half of the quota, one more member shall
be chosen in the State. This expresses, in a legal form, what has been the recognized
practice in the United States of America, of late years, of dealing with such fractions of
a quota. (See Webster's Report on Apportionment ; Foster's Comm. I. p. 434 ; and
note, § 107, supra.) The Canadian Constitution contains a similar direction.

§ 113. '* Five Members at Least."

With fifty thousand as the quota, Tasmania and Western Australia would be
entitled to only two or three members each in the National Chamber. This was
considered such an insignificant representation that provision was made that there
should be a minimum number of five membera in each State.

Provision as to Races disqualified from Voting.

25. For the purposes of the last section, if by the law
of any State all persons of any race are disqualified^'* from
voting at elections for the more numerous House of the Par-
liament of the State, then, in reckoning the number of the
people of the State or of the Commonwealth, persons of that
race resident in that State shall not be counted.

United States.— When the right to vote at any election for the choice of electors for Presi-
dent and Vice-President of the United States, representatives in Congress, the executive
and judicial officers of a Stat*, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty -one years of age, and citizens of
the United States, or in anj- way abridged, except for participation in rebellion or other
crime, the basis of representation therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole number of male citizens twenty-one
years of age in such State. — .Amendment XIV.

Historical Xote.— In the Commonwealth Bill of 1891, clause 26, Chap. I., was as
follows : —

" When in any State the people of any race are not entitled by law to vote at
elections for the more numerous House of the Parliament of the State, the representa-

456

COMMENTARIES ON THE CONSTITUTION.

[Sec. 2&

tion of that State in the House of Representatives shall be reduced in the proportion
which the number of people of that race in the State bears to the whole number of the
people of the State."

In Committee, Dr. Cockburn suggested that the reduction should extend, not only
to alien races, but to all male adults disfranchised. (Conv. Deb., Sj^d. [1891], pp.
637-9.) At the Adelaide session, 1897, the clause was introduced and passed as.
follows : —

" In ascertaining the number of the people of any State, so as to determine the-
number of members to which each State is entitled, there shall be deducted from the-
whole number of the people of the State the number of the people* of any race not .
entitled to vote at elections for the more numerous House of the Parliament of the j
State."

At the Sydney session, 1897, a suggestion by both Houses of the New South Walea ■
Parliament, to omit the clause, was explained by Mr. Carruthers as not expressing any
objection to the principle of the clause, but as directing attention to an ambiguity.
(Conv. Deb., Sj'd. [1897], pp. 45.3-4 ) At the Melbourne session, the clause was verbally
amended before the first report. After the first report it was incorporated with clause
24. (Conv. Deb., Melb. , pp. 1827-8.) After the fourth report, it was redrafted as it
now stands. (Id. p. 2447. )

§ 114. « Disqualified."

This section is based on the fourteenth Amendment of the Constitution of th&j
United States, cited above. That amendment was passed after the Civil War, in order |
to induce the Governments of the States to confer the franchise on the emancipated
negroes, who were declared citizens of the United States. It was designed to penalize,
by a reduction of their federal representation, those States which refused to enfranchise j
the negroes.

The effect of the section in this Constitution is that where, in any State, all the
persons of &ny race — such, for instance, as Polynesians, Japanese, &c. — are disqualified
from voting at elections for the popular Chamber in the State, the persons of that race
resident in that State cannot be counted in the statistics used for ascertaining the quota.

Representatives in first Parliament.

26. Notwithstanding anything in section twenty-four,
the number of members to be chosen in each State at the
first election"^ shall be as follows

New South Wales
Victoria ...
Queensland
South Australia ...
Tasmania ...

Provided that if Western Australia is an Original State,
the numbers shall be as follows : —

New South Wales

Victoria ...

Queensland

South Australia ... ... seven;

Western Australia ... five;

Tasmania... ... ... five.

twenty-three ;
twenty ;
eight ;
six ;
five ;

twenty-six ;
twenty-three ;
nine :

§ 115]

THE HOUSE OF REPRESENTATIVES.

457

Historical Note. — In the Commonwealth Bill of 1891, the clause was as
follows : —

" The number of members to be chosen by each State at the first election shall be
as follows : [To be determined according to latest statistical returrw at the date of the
jMSsing of the Act.y

At the Adelaide session, 1897, the clause was introduced and passed as follows : —

" Notwithstanding anything in section 24, the number of members to be chosen by
each Siate at the first election shall be as follows : [To be determined according to latest
statistical returns at the date of the parsing of the Act, and in relation to the quota referred
to in previous sections.'^ "

At the Sydney session, a suggestion by the Legislative Assembh' of Victoria to
omit reference to the quota was not put from the Chair, being consequential on other
amendments already rejected. (Conv. Deb., Syd., 1897, p. 454.) At the Melbourne
session, verbal amendments were made after the fourth report. In the BiU as intro-
duced into the Imperial Parliament, the blanks were filled in. with the alternative
pro\-ision in the event of Western Australia being an Original State.

§ 115. " The Number of Members
First Election."

. at the

On 21st February, 1900, a Conference of Statisticians, representing the colonies
which had agreed to accept the Constitution, was held at Sydnej' for the purpose of
determining, according to the latest available information, the number of representatives
to which each of those colonies, on becoming States, would be entitled. The Conference,
which was convened by Sir William Lj-ne, the Premier of New South Wales, on the
suggestion of Mr. Allan McLean, the Premier of Victoria, was composed as follows : —

Member of Conference. Office.

Colony Represented.

T. A. Coghlan ...

Go vemmen t Statistician

New South Wales

James J. Fenton . . .

Government Statist

Victoria

J. Hughes

... Registrar-General

Queensland

L. H. ShoU

... Government Statist, &c.

South Australia

R. M. Johnston ...

' Registrar-General. &;c.

Tsismania

It was nine jears since the last census had been taken in Australia, and conse-
quently it was necessary that computations on a uniform basis should be made and
concurred in as to the population of each colony. The total population of each colony
ha%nng been ascertained it was then necessary to deduct therefrom disqualified races
under Sec. 25, and aboriginals under Sec. 127. The Conference does not seem to have
been called upon to make any deductions on account of * ' the people of any race " under
the first named section. No difficulty was experienced in deducting the aboriginal
element. The result was that the Conference agreed to a resolution affirming that the
population of the colonies was, on 31st December, 1899, as follows : —

Colony.

Population
31st December, 1899.

New South Wales

Victoria

Queensland

South Australia ...

Tasmania

1,348,400

l,162.9u0

482,460

370,700

182,300

Total

3,546,700

458

COMMENTARIES ON THE CONSTITUTION. [Sec. 26.

With five colonies forming parts of the Commonwealth the number of senators
would be 30 ; twice the number of senators would be 60 ; 60 divided among the total
population yielded a quota of 59,112 (or, to an exact fraction, 59,111-6). This quota
divided among the population of each colony according to the provisions of sec. 24-ii. ,
allowing for fractions and the minimum, gave the number of representatives for each as
follows : —

State.

Population
31st December, 1899.

Number of
Members.

New South Wales

Victoria ..

Queensland

South Australia

Tasmania

1,348,400

1, 162,900

482,400

370,700

182,300

23 (22-81)
20 (19-67)

8 (8-16)
6 (6-22)
5 (3-08)

Total

3,546,700

In the aforegoing apportionment it will be seen that New South Wales was entitled
to a 23rd member by virtue of the remainder left, after the division, being more than
one-half the quota Victoria, for a similar reason, received a 20th member. According
to the quota Tasmania was entitled to only three members ; by the minimum provision
two members were added, raising its representation to five.

On 27th February these numbers were cabled by the Lieutenant-Governor of New
South Wales (Sir Frederick Darley) to Mr. Chamberlain, for insertion in sec. 26 of the
Bill. Before the Bill was introduced into the House of Connnons, however, Mr.
Chamberlain decided to provide for an alternative plan of distribution of members on
the basis of the whole of the six colonies, including Western Australia, forming parts of
the Commonwealth.

On the 27th April, Mr. Chamberlain cabled to the Acting-Governor of Western
Australia, informing him that the Premiers of the federating colonies had declared that
they had no authority to accept amendments in the Commonwealth Bill. " I cannot, in
these circumstances," continued the message, " press the matter further, and I would now
urge your Ministers earnestly to consider whether they should not, in the best interests
of the Colony, as well as of Australia, make a resolute effort to bring the Colony into
Federation at once. Western Australia, unless it joins as Original State, can only enter
later on condition of complete intercolonial free trade. It will thus lose the temporary
protection oflered by Clause 95, and looking to present population of Colony, it may also
be found difficult to secure such large representation as it would receive as Original
State, and which will enable Colony to secure adequate protection for all its interests in
Federal Parliament. Your Ministers will also, of course, take into consideration efl'ect
■of agitation of the Federalist party, especially in goldfields, if Western Australia does
not enter as Original State. In the circumstances, it appears to me of utmost import-
ance to future of Western Australia that it should join at once, and as your Ministers
have done their best to secure modifications desired by Parliament, I would urge them
to take early steps for summoning new Parliament, and laying position fully before it,
with a view to the action necessary for ascertaining wishes of people as to entering
Federation. If they agree to this course a clause will be inserted in Bill providing that
if people have intimated desire to be included before issue of Her Majesty's Proclamation,
Western Australia may join as Original State." (House of Com. Pap,, May, 1900, p.
71-2.)

A reply to this cable was sent by Sir. A. 0. Onslow on 2nd May, in which, after
4;hanking Mr. Chamberlain for liis great efforts on behalf of Western Australia, he said-

§ 115.]

THE HOUSE OF REPRESENTATIVES.

459

" Parliament has been summoned, on your suggestion, for the 17th May, when an
enabling Bill will be introduced by Premier providing for the immediate submission of
the Federation Bill to the people. Ministers gratefully accept your offer to make pro-
vision in the Imperial Act for Western Australia to enter as an Original State should the
wishes of the people be expressed in favour of Federation before the Queen's Proclama-
tion is issued." (House of Com. Pap., p. 75.)

On 4th May Mr. Chamberlain cabled to the Governors of New South Wales.
Victoria, Queensland, South Australia, and Tasmania, informing thera of the offer made
by Her Majesty's Government to provide in the Commonwealth Bill for admission of
Western Australia as an Original State, if the wishes of the people of that Colony
should be expressed before the Queen's Proclamation ; that the Government of
Western Australia had accepted the offer, and would introduce a Bill to provide for an
immediate Referendum. It was necessary that an agreement should be arrived at as to
the change of figures in Clause 26, should Western Australia join. " I shall," concluded
the message, "be glad to learn as soon as possible what figures are agreed on." (House
of Com. Pap., p. 77.)

The materials available for a fresh computation of the number of members were
those agieed to by the Conference of Statists held in Sjdney in February, and the
official estimate of the population of Western Australia, which was supplied by the
Registrar-General of that colony. The population of Western Australia, exclusive of
aborigines, was computed at 171, OCX), making the total population of Australia
3,717,700. With six colonies joining the Union the quota was reduced from 59,112 to
51,635 (or, to an exact fraction, 51,634-72). This new quota divided among the popula-
tion of the various colonies gave the following apportionment : —

State.

Population on 31.st Number of
December, 1899. | Members.

New South Wales

Victoria

Queensland

South Australia

Tasmania

Western Australia

Total

1.348,400
1,162,900
482,400
370,700
182,300
171,<X)0

26 (2611)
23 (22o2)
9 (9M)
7 (718)
5 (3-53)
5 (3-31)

3,717,700 ! 75

The number of members apportionable among six colonies, as shown in the above
table, was cabled to the Secretary of State for the Colonies, and was by him embodied
in the proviso to sec. 26 of the Constitution as introduced into the House of Commons.
The wisdom of this provision has been fully vindicated by subsequent events. The Con-
stitution was, by authority of the Parliament of the colony, referred to the people of
Western Australia on 31st July. The result of the poll was : —

Yes

44,800
19,691

25,109

Majority for the Constitution . . .

The referendum in Western Australia was a remarkable incident in the history of
the colony as well as in the history of Australian Federation. It was the first time in
which adult women participated in the political franchise in that colony, a right which
was freeh- exercised, and, as it proves, not adversely to the consummation of Conti-
nental union. By the vote of 3l8t July, Western Australia joins the Commonwealth as
an Original State.

460 COMMENTARIES ON THE CONSTITUTION. [Sec. 27.

The figures which appear in the above table, in parenthesis, show that Victoria is- 1
entitled to its 23rd member and Tasmania to its 4th member by virtue of there being,
after division, a remainder greater than one-half of the quota. Tasmania is entitled toj
its 5th member and Western Australia to its 4th and 5th membei'S by virtue of the pro-
vision that no Original State shall have less than five members. ,

Alteration of number of members.

27. Subject to this Constitution, the ParUament may;
make laws for increasing or diininishing^^^ the number of the-j
members of the House of Representatives.

Canada. — The number of meml)er8 of the House of Comraons may be from time to time-j
increased by the ParHament of Canada, provided the proportionate representation of the-|
Provinces prescribed by this Act is not thereby disturbed. — B.N. A. Act, 1867, sec. 52.

Historical Note. — Clause 30, chap. I. of the Commonwealth Bill of 1891 was
follows : —

' ' The number of members of the House of Representatives may be from time ttvJ
time increased or diminished by the Parliament of the Commonwealth, but so that thftl
proportionate representation of the several States, according to the numbers of theirJ
people, and the minimum number of members prescribed by this Constitution for any!
State, shall be preserved."

At the Adelaide session, 1897, the clause was introduced and passed as follows

" Subject to the provisions of this Constitution, the number of the members of the
House of Representatives may be from time to time increased or diminished by thfl
Parliament."

At the Melbourne session, verbal amendments were made after the fourth report.

§ 116. " Increasing or Diminishing."

The Federal Parliament, like the Canadian Parliament, is authorized to increase the
number of members of the House of Representatives, but in both cases there is a con-
stitutional limit to the exercise of that power. The Federal Parliament cannot increase
the representatives to any number beyond that as "nearly as practicable twice the
number of the senators " for the time being. When the senators for each .State are
increased by Federal legislation, then the number of members of the House of Repre-
sentatives must be correspondingly raised to a number " as nearly as practicable twice
the number of the senators. "

The provision for equal representation of all the Original States in the Senate makes
it impossible to increase the senators for one Original State without a similar increase
for all the others. It follows that any alteration made by increasing the number of
senators for each Original State must increase the whole number of senators by a number
which is some multiple of the number of Original States ; and the corresponding increase
in the House of Representatives will be twice that number. Except therefore by
admitting or establishing new States, the House of Representatives can only be enlarged
by a number which is some multiple of twice the number of States. For instance, the
number of Original States being six, the number of members of the House of Represen-
tatives can — except as stated — only be increased by twelve, or twenty-four, or thirty
six, or some other multiple of twelve.

117.1

THE HOUSE OF REPRESENTATIVES. 461

Duration of House of Representatives.

28. Every House of Representatives shall continue for
three years^^" from the first meeting of the House, and no
longer, but may be sooner dissolved"^ by the Governor-
General.

C AXADA. — Every"House of Commons shall continue for five years from the day of the return of the
Writs for choosing the House (subject to be sooner dissolved by the Governor-General) and
no longer. — B.N. A. Act, 1867, sec. 50.

Historical Note. — In the Constitutions of the Australian colonies, the duration of
the Legislative Assemblj' has sometimes been computed from the day of the return of
the writs, and sometimes from the day of the first meeting. By the Constitution Acts
of New South Wales, Queensland, Tasmania, and New Zealand, the duration of the
Legislative Assemblies of those colonies was formerly five years from the day of the
return of the writs ; but by amending Acts in each of those colonies the duration is now
reduced to three years from the day of the return of the writs (See Triennial Parlia-
ments Act, 1874 [N S.W.], 37 Vic. No. 7 ; Constitution Amendment Act, 1890 [Q.], 54
Vic. No. 3; Constitution Amendment Act, 1890 [Tas.], 54 Vic. No. 58; Triennial
Parliament Act, 1879 [N.Z.].) In Western Australia, under sec. 14 of the Constitution
Act of that colony, the duration of the Legislative Assembly is four years from the
day of the return of the writs. In Victoria, under sec. 19 of the Constitution Act of
that colony, the duration of the Legislative Assembly was formerlj' five j-ears from the
return of the writs ; but in 1859, by the Victorian Act 22 Vic. c. 89, sec. 2 (now
re-enacted in the Constitution Amendment Act, 1890, sec. 127), the duration was
limited to three years from the day of the first meeting. In South Australia, under the
Constitution Act of that colony, the duration of the House of Assembly is three years
from the day on which the House " shall first meet for the despatch of business."

In the Sj'dney Convention of 1891, the clause as first drawn followed the practice in
vogue in a majority of the colonies by providing for a duration of three years " from the
day appointed for the return of the writs for choosing the House." In Committee, Sir
John Bray pointed out that in some of the colonies the writs were made returnable on
different days, and as long as the elections were governed by the Electoral laws of the
States there would be confusion. Sir Samuel Griffith urged that the practice in some of
the colonies was erroneous, and that in England the writs were invariably returnable on
the same day. After debate, the clause was amended, on Sir John Bray's motion, to
make the duration date from "the day appointed for the first meeting of the House."
(Con v. Deb., Syd. [1891]. p. 643-52.)

At the Adelaide session, 1897, the clause as introduced provided for a duration of
" four " years from the date appointed for the first meeting of the House. In Committee,
on Sir. Geo. Turner's motion, this was altered to "three" years. (Conv. Deb., Adel.,
p. 1031.) At the Sydney session, a suggestion by the Legislative Assembly of W^est«rn
Australia, to make the term four years, was negatived. (Conv. Deb., Sjd., 1897, p. 463.)
At the Melbourne session, the clause was verbally amended after the fourth report.

§ 117. "Shall Continue for Three Years."

Demise of the Crown*. — Under the law as it existed prior to the Revolution of
1688, the English Parliament, elected and duly constituted under the writs issued by
one reigning sovereign, continued in existence from session to session until a change took
place in the succession to the Crown, unless it was previously terminated by the
prerogative act of Dissolution. There was no legal provision for its termination by
effluxion of time. Its continuitj' depended onlj- on the life or pleasure of its Royal
originator — the King or Queen by whom the writs for its election were issued. It was
a principle of the common law, that the created power terminated with the demise of
the creating power.

462 COMMENTARIES ON THE CONSTITUTION. [Sec. 28.

By the Act 6 and 7 VVm. and Mary c. 2, commonly known as the Triennial Act (1694),
it was for the first time in English history declared that no Parliament should have any
continuance longer than for three years only, at the farthest. The Act 1 Geo. I. c. 38
(1715), known as the Septennial Act, after reciting the Triennial Act, declared that the
then existing Parliament and all future Parliaments " shall and may respectively have
continuance for seven years and no longer" from the day appointed by the writ of
summons for the meeting of Parliament, unless the Parliament should be sooner dis-
solved by the Crown. That Act is still in force in Great Britain.

The Triennial Act was a limiting Act ; the Septennial Act succeeded it as a'limiting
Act. Without one or the other of those Acts the duration of Parliament would have
remained determinable only by the death or pleasure of the Sovereign. The Septennial
Act provided that, no matter how long the sovereign reigned, a Parliament should not
continue for longer than seven years. It did not declare that the Parliament should not
expire with the death of the Sovereign. Hence the common law doctrine, as to the
eflfect of the demise of the Crown on any Parliament in being, remained in full force.

The practice of summoning a new Parliament immediately after the occurrence of a
change in the succession to the Crown was found to be inconvenient, and it was appre-
hended that danger might arise through there being no Parliament in existence in case
of a disputed succession. It was therefore enacted by 7 and 8 Wm. III. c. 15, that the
Parliament in being should, if sitting, continue for six months after the demise of the
Crown, unless sooner dissolved, and if not sitting should meet on the day fixed by the
prorogation ; and that, in case there was no Parliament in being, the last preceding
Parliament should be convened. By the Act 6 Anne c. 41, s. 4, it was enacted that
Parliament should not be determined or dissolved by a demise of the Crown, but should
continue and be able to act for six months thereafter and no longer, unless sooner
dissolved by the Successor to the Crown. And now by the Act 30 and 31 Vic. c. 102,
s. 51 (Representation of the People Act, 1867), the British Parliament is no longer
affected in any way by the demise of the Crown.

The effect of a demise of the Crown on the duration of an Australian Legislature
was considered by the Privy Council in the case of Devine v. Holloway, 9 Weekly
Reporter, 642. In Xovember, 1856, John Devine instituted a suit in the Supreme Court
of New South Wales to eject Thomas Holloway and others from certain lands in that
colony, which he claimed as heir-at-law of Nicholas Devine, who in 1830 died intestate
and seised of the property. On 13th July, 1837, three weeks after the death of His
Majesty William IV., and before news of that event had reached the colony, the
Governor and Legislative Council of New South Wales, by virtue of authority conferred
on him by the Act 9 Geo. IV. c. 83, made an Ordinance enacting that the provisions of
the English Statute of Limitations, 3 and 4 Wm. IV. c. 27, should become law in the
colony. In the ejectment suit the defendants pleaded the Statute of Limitations in bar
of the plaintiffs claim, and being nonsuited he appealed to the Privy Council. On his
behalf it was contended, inter alia, that the Colonial Act adopting the English statute
was null and void on the ground that the Legislative Council ceased to exist with the
death of William IV., and that in order to acquire a new legal life it ought to have been
reconstituted in the name of Her Majesty. This contention was overruled by the Privy
Council. It was held that the authority of the Governor and Legislative Council wa.s
not determined by the demise of the Crown. During the argument. Counsel for tlie
appellant contended that neither the Act 1 Wm. IV. c. 4, which validated acts done by
Governors of Plantations after the expiration of their Commissions by demise of the
Crown, nor the Act 1 Anne c. 2, which continues all civil and military offices, applied to
a colonial Legislature. Lord Cranworth, however, seems from the brief report to have
based the decision of the Privy Council upon the Succession Act, 6 Anne c. 41. sec. 8,
which provides that no civil or military office within the kingdoms of Great Britain or
Ireland " or any of Her Majesty's Plantations " should become void by reason of the
demise of the Crown, but that the holder of any such office should continue in office for

§ 117.] THE HOUSE OF REPRESENT ATITES. 463

six months unless sooner removed ; and it was held that the authority of the Governor
and Legislative Council was not determined by the demise of the Crown.

The Constitutions of the Australian Colonies, as originally assented to by the
Crown, provided that the Commissions of the judges of the Supreme Court should
continue in force notwithstanding the demise of Her Majesty or of Her heirs and
successors. They contained no special pro^^sions relating to the effect of a demise of the
Crown with reference to the duration of the Legislatures thereby created. The New
South Wales Constitution Act, however, contained one section (33) which shows that in
the view of the framers of the instrument the Parliament thereby created was not to be
dissolved by demise of the Crown. That section, after prescribing the oath of allegiance
to the Queen to be taken by Members of the Legislative Council and Legislative
assembly before they could sit or vote, went on to declare : —

" And whensoever the demise of Her present Majesty or of any of Her Successors
to the Crown of the said United Kingdom shall be notified by the Governor of the
colony to the said Council and Assembly respectively, the members of the said Council
and Assembly shall before they shall be permitted to sit and vote therein take and
subscribe the like oath of allegiance to the successor for the time being to the said
Crown."

Section 4 of the Constitution Act of Queensland is the same in form and substance.
The Constitution Acts of Victoria, South Australia, and Tasmania, contain the
usual sections formulating the oath of allegiance to the Queen to be taken bj' members
of Parliament, but making no provision that upon the demise of Her Majesty they
should take a like oath of Allegianc-e to Her Successor. It is open to argument whether
the framers of these Constitutions acquiesced in the principle that the Legislatures
should be terminated by demise of the Crown, or whether they were of opinion that the
form of the instruments and the mode of constituting the proposed Legislatures rendered
them free from the operation of the common law rule.

In 1876, however, the Parliament of Victoria passed an Act to amend the Electoral
Act, 1865, and section 1 1 of the amending Act provided that the Parliament in being
at any future demise of the Crown should not be determined or dissolved by such
demise, but should continue so long as it would have continued but for such demise,
unless it should be sooner prorogued or dissolved by the Governor. That section is now
to be found in the Victorian Constitution Act Amendment Act, 1890, sec. 4. It was
based on the Imperial Act 30 and 31 Vic. c. 102, s. 51. Upon the consideration of the
clause in the Committee of the Legislative Assembly the Attorney-General, Mr. G. B.
(afterwards Mr. Justice) Kerferd, was questioned by several legal members of the House
as to its constitutional necessity. Mr. J. J. (now Judge) Casej- thought the clause was
unnecessary. He was of opinion that the rule of Common Law, that where a power was
brought into existence by another power the created power terminated with the expira-
tion of the creating power, did not apply to a colonial Legislature, the writs for the
election of whose members were issued in the name of the Governor and not in the name
of the Queen. Mr. Kerferd said that it was the opinion of some learned members of
the legal profession that the clause was necessary. There certainly was a doubt about
j the matter, and in his opinion the doubt ought to be removed. However, he promised
to consider the view submitted by Mr. Casey, and if it were clear beyond all doubt that
I the clause was unnecessarj- he would ask the House to strike it out at a subsequent
I stage. Xo further reference was subsequently made to the clause, which became law.
j (Vic. ParL Deb., 12th Sept. [1876], voL 24, p. 715.) On the authority of De\-ine v.
I HoUoway, mpra, it is submitted that the argument presentefl by Mr. Casey was a sound
I one, and that consequently there was no constitutional necessity for the passage of
I section 11 of the Electoral Act of Victoria, 1865. The fact that writs for the election
1 of senators for each State are issued by the Governor thereof, and that writs for the

I election of members of the House of Representatives are issued by the Governor-
General in Council, coupled with the further provision that senators are chosen for a
, fixed term of six years' duration and that the House of Representatives " shall continue

464 COMMENTARIES ON THE CONSTITUTION. [Sec. 28.

for three years " subject to being sooner dissolved by the Governor-General, and further
the forms of oath or affirmation in the schedule, by which members of the Federal
Parliament swear or declare allegiance " to Her Majesty Queen Victoria Her Heirs and
Successors according to law,' should be sufficient to bar the operation of the common
law rule ; and it therefore may be safely assumed that a demise of the Crown will not
cause a dissolution of the Federal Parliament.

118. " Sooner Dissolved.'

The House of Representatives may continue in existence for three years from the
day of its first meeting, but it maybe "sooner dissolved" by the Governor-General.
Its normal term is therefore a triennial one, and is the same as that of the Legislative
Assembly of New South Wales, the Legislative Assembly of Victoria, the Legislative
Assembly of Queensland, the House of Assembly of South Australia, tlie House of
Assembly of Tasmania, and the House of Representatives of New Zealand, which are
elected for three years, but are liable to be sooner dissolved by the Crown. The Legis-
lative Assembly of Western Australia is elected for four years, and the House of
Commons of Canada for five years ; both, however, being liable to be sooner dissolved by
the Crown. The American House of Representatives is elected for two years, but is not
liable to dissolution before the expiration of its term.

The right to dissolve the House of Representatives is reserved to the Crown. This
is one of the few prerogatives which may be exercised by the Queen's Representative,
according to his discretion as a constitutional ruler, and if necessary, a dissolution may
be refused to responsible ministers for the time being. A refusal to grant a dissolution
would no doubt be a ground for the resignation of the Ministry whose advice was dis-
regarded. Nevertheless, such refusal could not be challenged as unconstitutional.
During the year 1899, three precedents occurred in Australia, which show that in the
exercise of this power of dissolution the Representative of the Crown is not a mere
passive instrument in the hands of his Ministers. It is well known that when an adverse
vote was, on 7th September, 1899, carried against Mr. G. H. Reid in the Legislative
Assembly of New South Wales, he advised Lord Beauchamp to dissolve the House.
That advice the Governor did not feel justified in accepting, and accordingly Mr. Reid
resigned, and Mr. (now Sir William) Lyne formed a new administration. On 28th
November following, the Kingston Ministry suffered a defeat in the House of Assembly
of South Australia. Mr. Kingston applied to Lord Tennyson for a dissolution, which
being refused, he resigned, and a new Ministry was formed by Mr. Solomon. And on
Ist December of the same year, when a vote of want of confidence was carried against
Sir George Turner in the Victorian Assembly, he applied to Lord Brassey for a dis-solu-
tion, which was refused ; and he then resigned, Mr. Allan McLean being sent for.
These recent precedents show that the Representative of the Crown, in the exercise of
its undoubted prerogative to grant or refuse a dissolution, can wield an important
influence in the life of a Ministry, and in the duration and possible action of a Parlia-
ment.

The diflference between a grant and a refusal of a dissolution is: (1) A grant of a
dissolution is an Executive act, to which the Crown assents, and for which the Ministry
tendering the advice and doing the act are responsible to Parliament and the country ;
(2) a refusal to grant a dissolution is not an Executive act ; it is a negation of one, for
which the Representative of the Crown is alone responsible, although it is sometimes
stated that the incoming Ministry assumes the responsibility of the refusal by under-
taking to carry on the Queen's Government for the time being.

The leading characteristics of this prerogative, and the general principles according
to which the discretionary power of the Crown to dissolve or to decline to dissolve is
exercised, may be gathered from the authorities. (See Note, " Dissolve," § 63, mpra.)

^ 119.] THE HOUSE OF REPRESENTATIVES. 465

Electoral divisions.

29. Until the Parliament of the Commonwealth other-
wise provides, the Parliament of any State may make laws
for determininjjf the divisions in each State^^^ for which
members of the House of Representatives may be chosen, and
the number of members to be chosen for each division'"^. A
division shall not be formed out of parts of different States^-^.

In the absence of other provision, each State shall be
one electorate.

United States.— The times, places, and manner of holding elections for . . representatiTes
shall be prescribed in each State by the letfislature thereof ; but the Congress may at any
time, by law, make or alter such regulations, except as to the places of choosing
senators. — Const., Art. I., sec. 4, sub-sec. 1.

SwrrzBRLASD.— The elections for the National Council . . . are held in federal electoral dis-
tricts, which in no case shall be formed out of parts of different Cantons.— Const.,
Art. 73.

Casada. — Until the Parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia,
and New Brunswick shall, for the purposes of the election of members to ser^'e in the
House of Commons, be divided into electoral districts as follows. — B.N.A. Act, 1867,
sec. 40.

HiSTOBiC-VL Note. — Clause 31, Chap. L of the Commonwealth Bill of 1891 was as

follows : —

" The electoral divisions of the several States for the purpose of returning members
of the House of Representatives shall be determined from time to time by the Paoiia-
ments of the several States."

At the Adelaide session, 1897, the clause was introduced and passed as follows : —

"Until the Parliament otherwise provides, the electoral divisions of the several
States for the purpose of returning members of the House of Representatives, and the
number of members to be chosen for each electoral division, shall be determined from
time to time by the Parliaments of the several States. Until division each State shall
be oue electorate."

At the S^'diiey session, a suggestion by the House of Assemblj' of Tasmania, to omit
" Until the Parliament otherwise provides," and a suggestion by both Houses of the
Victorian Parliament, to omit " until division each State shall be one electorate," were
negatived. (Conv. Deb., Syd. [1897], pp. 4.54-5.) At the Melbourne session, after the
first report, the clause was verbally amended on Mr. Barton's motion, and the words
** No electoral district shall be formed out of parts of different States " were added.
These words were taken from the Swiss Constitution (nupra), the necessity for them
being due to the amendment already made in sec. 24, that members of the House of
Representatives should be chosen not by " the people of the several States," but by
"thepeopleof the Commonwealth." (Conv. Deb., Melb., p. 1840.) After the fourth
report, the clause was verbally altered.

§ 119. "The Divisions in each State."

The electoral divisions for the House of Representatives, in each State, may, until I
the Federal Parliament interposes and deals with the subject, be determined by the
State legislatures, subject to the one restriction that a division is not to be formed out of
parts of different States. In America a similar power has been exercised by the State
legislatures without check for many years, and electoral divisions have been, for party
purposes, carved out in a manner which led to grave scandal and dissatisfaction. This
reprehensible manipulation of constituencies developed the art known as " Gerry-
mandering," so named because Essex, a district of Massachusetts was, for political
reasons, so curiously shaped as to suggest a resemblance to a salamander, and Elbridge
30

466 COMMENTARIES ON THE CONSTITUTION. [Sec. 29.

Gerry was the governor of the State who signed the Bill. (See Bryce, Am. Comm. 2nd
ed. I. p. 121.) Tlie grossly' unjust apportionment of population of districts, made by
partisan majorities in State Legislatures, eventually led to the intervention of the
Courts, and certain State laws which were clearly in violation of the equality enjoined
in their respective Constitutions were held invalid. (Foster, Comm. I. p. 399.) A law
of a State, relating to electoral divisions, could not be held unconstitutional unless it
was contrary either to Federal law or to the Constitution of the State in which it was.
challenged. (Id. )

"By the Apportionment Act of 25th February, 1882, Congress required, as the
general rule, that the members from each State shall be ' elected by districts composed
of contiguous territory, containing as nearly as practicable an equal number of inhabi-
tants, and equal in number to the number of representatives to which such State ' ' may
be entitled in Congress, no one district electing more than one representative.' To the
States is left, then, only the construction of such districts. Congress must find the con-
stitutional warrant for this measure either in the clause which provides that ' represen-
tatives shall be apportioned among the several States,' &c., or in the clause which
provides that Congress may prescribe regulations as to the times, places and manner of
holding elections for representatives." (Burgess, Political Sc. II. p. 48.)

" I think it cannot be reasonably doubted that the power to determine the manner
of holding the Congressional elections includes the power to prescribe the scrutin
d'arrondiHsement or district ticket as against the scrutin de liste or general ticket, or vice
versa ; but does it include the power to require the States to construct the districts of
contiguous territory and of as nearly equal population as is practicable? It is perhaps
too late to raise any doubts upon this point. Congress has certainly gone no further
than a sound political science would justify, indeed, not so far as a sound political
science would justif}'.'' (Id. p. 49.)

§ 120. ''Members to be Chosen for Each Division."

The electorates in each State contemplated by this section are territorial divisions
of the Commonwealth. Members of the House of Representatives are to be chosen in
territorial divisions, within each State, but the members so chosen are members for their
respective divisions, as parts of the Commonweath ; they are not members " for the
State." I he senators are " for the States ;" the representatives are "for each division."
The divisions, altogether, constitute the Commonwealth. Consequently the House of
Representatives is the Chamber in which the people of the Commonwealth, voting in
Federal constituencies, are represented. In settling the number and boundaries of such
divisions the State Parliaments are, for the time being, exercising a delegated authority;
they are acting merely as legislative agents of the Federal Parliament, A\hicli may, at
any time, interpose and undertake the work. This ultimate control over electoral
divisions is another illustration of the national principles on which the House of Repre-
sentatives is founded.

§ 121. " Out of Parts of Different States."

The Swiss Constitution similarly provides that fe<leral electoral districts " shall in
no case be formed out of parts of different Cantons." (Art. 73.) In the American Con-
stitution, under which representatives are chosen " bj- the people of the several States. '
no electoral division could cross a State boundary ; but in this Constitution, under whicli
(following the Swiss example) representatives are to be chosen by " the people of the
Commonwealth," it was desirable that this should be explicitly stated. At elections of
the House of Representatives, therefore, State boundaries are merely recognized as
boundaries of groups of electoral divisions — not as separating one people from another.
This is a further index of the national character of the Constitution, and of the existence
of a national citizenship. (See Notes, § 27, " Federal," supra.)

§l>2.] TBE HOUSE OF REPRESENTATIVES. 467

Qualification of electors.

30. Until the Parliament otherwise provides, the
qualification of electors^" of members of the House of
Representatives shall be in each State that which is prescribed
by the law of the State as the qualification of electors of the
more numerous House of Parliament of the State ; but in
the choosing of members each elector shall vote only
once^^.

UxiTED States. — . . . the electors in each State shall have the qualifications reqaisite for
electors of the most numerous branch of the State Leg^islature. — Const. Art. I. sec. iL
subs. 1.

Canada. — Until the Parliament of Canada otherwise provides, all laws in force in the several
Provinces at the Union relative to . . . the voters at elections of such members,
. . . shall respectively apply to elections of members to sen-e in the House of Com-
mons for the same several Provinces— B.X. A. Act, 1867, sec. 41.

Switzerland. — Every Swiss who has completed twenty years of age, and who in addition is not
excluded from the rii^hts of a voter by the legislation of the Canton in which he is
domiciled, has the right to vote in elections and popular votes. Nevertheless the Con-
federation may by law establish uniform regulations for the exercise of such right. —
Const., Art. "4.

Historical Note. — In the Commonwealth Bill of 1891 the clause was as
follows : —

" The qualification of electors of members of the House of Representatives shall be
in each State that which is prescribed by the law of the State as the qualification for
electors of the more numerous House of the Parliament of the State."

In Committee, Mr. Deakin suggested that the Federal Parliament should hare some
power to fix a uniform qualification ; but Sir Samuel GrifBth urged the inconvenience of
duplicating the electoral machinerj", and thought that the States could be trusted here,
as they were in America, to fix a democratic franchise. Dr. Cockburn moved to add : —
" But no property qualification shall be necessary for electors of the said House, and
each elector shall have a vote for only one electoral district."

This was criticized, partly as an interference with the States, which might endanger
Federation in some colonies, and partly as involving difficulties of administration. After
discussion. Dr. Cockburu withdrew his amendment to make room for a proposal by Mr.
Barton that the Federal Parliament should have power to prescribe a uniform federal
franchise Mr. Baker feared that this would be an impediment to Federation ; whilst
Mr. Wrixon opposed it as being national rather than federal. It was urged in reply
that the federal franchise was a national matter ; but the amendment was negatived
without division. Dr. Cockburn's amendment was then negatived by 28 votes to 9.
(Conv. Deb., Syd. [1891], pp. 613-37.)

At the Adelaide session, 1897, the clause was introduced as it now stands, except
I that the concluding words were : "But in the choosing of such members each elector
j shall have only one vote." The only debate was upon Mr. Holder's proposals for
j women's suffrage (see Historical Note, sec. 41). (Conv. Deb., Adel., pp. 715-32,
j 1193-7.) Similar amendments were made to those made in sec. 8 (Qualifications of
. electors of senators). (Id. pp. 1191, 1210.) At the Sidney session, a suggestion by
j the Legislative Assembly of New South Wales, to add " Provided that the Parliament
I may not enact that any elector shall have more than one vote," was negatived as being
unnece.«sary. (Conv. Deb., Syd., 1897, pp. 455-7.)

§ 122. "The Qualification of Electors."

On the question of settling the franchise for the Lower House, two theories were
advanced in the Convention, and each received support from federalists of different
types and sympathies. One theory was that the franchise for both Houses should be
treated as a State right, and that its determination should be constitutionally secured

468 COMMENTARIES ON THE CONSTITUTION. [Sec. 30.

to tlie States as an unassailable prerogative. On the other hand, the fixing of the
franchise for the national Chamber was, by many members, considered a matter in
which the Commonwealth was pre-eminontlj'^ interested, and they contended that it
should be placed within the control of the Federal I'arliament. In support of this view
it was argued that, in voting for members of the House of Representatives, electors
exercise a public function relating to the Commonwealth, and not one relating to the
State in which they reside ; that the ultimate safety and destiny of the Commonwealth
depend upon the forces which find representation in the national Chamber ; that the
Parliament, composed of members representing both the State element and the National
element in the composition of the Commonwealth, should have the right, in the last
resort, to decide who were sufficiently qualified to be entitled to the privilege of partici-
pating in the exercise of political power— the right to prevent the enfranchisement of
those not mentally and ethnically qualified, and to enforce the enfranchisement of those
nationalized by law and experience and able and willing to discharge the duties
pertaining to the suffrage.

In the Constitution of the United States of America, as originally framed, the
settlement of the franchise for the House of Representatives was made a State right.
Each State was left free to fix for itself, within its own limits, its conditions of
suffrage. (Bancroft, vol. ii. p. 128.) Each State had the exclusive power to regulate
the right of suffrage and to determine who should vote at federal elections in the State.
(Huber v. Reily, 53 Penn. St. 115 ; Morrison v. Springer, 15 Iowa, 345. ) The States, it
was said, were the best judges of the circumstances and temper of their own people.
Accordingly, the rule was adopted, in language partly reproduced in the above section
of this Constitution, that " The qualifications of the electors shall be the same, from
time to time, as those of the electors in the several States of the most numerous branch
of their own legislatures." Owing, however, to the unjust and impolitic maimer in
which some of the States discriminated in franchise legislation, the Constitution has
been, on several occasions, amended in order to remove glaring abuses and to redress
monstrous wrongs. First came the Fourteenth Amendment, which declared that—

"All persons born or naturalized in the United States, and subject to the jurisdic-
tion thereof, are citizens of the United States, and of the State M'herein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States. . . . When the right to vote at any election for
the choice of electors for President and Vice-President of the United States, Represen-
tatives in Congress, the executive and judicial officers of the State, or the members of
the legislature thereof, is denied to any of the male inhabitants of such State, being
twenty-one years of age, and citizens of the United States, or in an\' way abridged,
except for participation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens shall bear
to the whole number of male citizens twenty-one years of age in such State."

This amendment having been found ineffectual to secure the political enfranchise-
ment of the negroes, the Fifteenth Amendment was passed, providing that the right of
citizens of the United States to vote should not be denied or abridged by the United
States or any State on account of race, colour, or previous condition of servitude, and
that the Congress should have power to enforce this article b}' appropriate lej^islation.
" The Fifteenth Amendment," says Dr. Burgess, "is negative language and does not
directly confer upon any one the privilege of suffrage. It simplj' guards tiie individual
against any discriminations in reference to the suffrage which may be attempted by the
States, or bj^ the government of the United States, on account of race, colour, or pre-
vious condition of servitude. This restriction, however, may indirectly confer suffrage :
if, for example, a State law confers suffrage upon white persons having such and such
qualifications, this provision of the fifteenth amendment would then operate to confer it
wpon other persons, not white, having the same qualifications." (United States v.
Reese, 92 U.S. 214 ; Neal v. Delaware, 103 U.S. 370 ; Political Sc. II. p. 42.)

These amendments of the American Constitution, recognizing a national citizcnslup
and forbidding discriminations in franchise legislation by the States, show the tendency

§ 122.] THE HOUSE OF REPRESENTATIVES. 469

of the American Constitution to regard the franchise for the House of Representatives
as a national question, in which the nation itself is concerned, and which the nation may
at any time, by a further amendment, withdraw absolutely from the control of the
States.

The Constitution of the Commonwealth, following the American precedent, starts
with the electoral franchise in each State, prescribed by the law of the State as the
qualification of electors of the more numerous House of the Parliament of the State.
But the Federal Parliament may at any time by appropriate legislation, and without an
amendment of the Constitution, deal either partly or wholly with the question, and
impose a franchise for Federal elections. In the exercise of this power, however, there
is one restriction provided by clause 41 ; that no adult person who has or acquires a right
to vote at elections for the Legislative Assembly of a State, shall, while the right con-
tinues, be prevented by any law of the Commonwealth from voting at elections for either
House of the Federal Parliament. In other words, the Federal Parliament can pass an
enlarged and liberalized franchise for the whole Commonwealth ; but it cannot disqualifj*
an}- adult person already entitled to a vote by the law of the State in which he or she
resides. (See Note, § 139, infra.)

The qualifications of electors of the more numerous House of the Parliaments of the
several States, and of the colony of New Zealand, may be here summarized.

Nexc South Wales. — Every man of the age of 21 years, being a natural-bom or
naturalized British subject, unless disqualifierl, is entitled to be enrolled for the division
of the Electoral District in which he resides, and to vot« therein, provided that he
holds an elector's right ; to obtain which he must have been resident in the colony for
one year (or, if naturalized, for one year after naturalization) and resident in the
District for three months. (Parliamentary Electorates and Elections Act of 1893 [56 Vic.
No. 38]. ) Number of electors enrolled, July, 1898, .324,338.

Victoria. — Every man of the age of 21 jears, being a natural-born British subject
(which is deemed to include naturalized subjects resident for 12 months in tlie colony),
and not disqualified, is entitled to vote in any division of an Electoral District for
which he holds an electors right, or in which he is enrolled upon a "roll of rate-paj'ing
electors." The qualification for an elector's right is either (a J retddenlial—requiriDg
residence for twelve months in the colony and for one month in the division of the
District ; or (bj noii-residential — requiring possession of freehold estate within the
district to the value of £50 or the annual value of £5. (Constitution Act Amendment
Act of 1890, sees. l-2S-13o.) By the Constitution Act Amendment Act, 1899 (known as
the Plural Voting Abolition Act), it is pro^^ded that, after the expiration of the present
Parliament, no person shall vote in more than one Electoral District at an\' election, or
more than once at the same election. Number of electors enrolled for 1898, 2J2,5GO.

(Queensland. — Everj- man of the age of 21 years, Ijeing a natural-born or naturalized
British subject or a denizen of Queensland, unless disqualified, is entitled to be enterefl
on the roll for any Electoral District if qualified within the District in any of the follow-
ing ways: — (1) Residence; (2) Freehold estate of the value of £100; (3) Household
occupation ; (4) Leasehold estate of £10 annual value, held for at least 18 months, or
having 18 months to run ; (5) Pastoral license of £10 annual value. The qualifjong
period in the case of the residential, freehold, household, or pastoral qualification is six
months ; or, if the claimant has previously been an elector, three months. There is no
limit to the number of Districts in Mhich an elector may be enrolled ; but no elector can
claim a plural voting in any District. Aboriginal natives of Australia, India, China, or
the South Sea Islands are not entitled to be enrolled, except in respect of a freehold
qualification. (Elections Act of 1885 [49 Vic. No. 13]; Elections Act of 1897 [61 Vic.
No. 26].) Number of electors in 1897, 81,892.

South Australia. — All British subjects of the age of 21 years (men and women),
inhabitants of South Australia, who have been registered upon an\' Assembly roll for
six months, may vote for members of the Assemblj-. In the Northern Territory, immi-

470 COMMENTARIES ON THE CONSTITUTION. [Sec. 30.

grants under the Indian Immigration Act, 1882, and all persons except natural born
British subjects and Europeans or Americans naturalized as British subjects, are dis-
qualified. (Electoral Code, 1896.) Number of votes on the roll for the year 1897,
134,886.

Weste7-n Atistralia. — Every person of the age of 21 years, being a natutal-born or
naturalized British subject, is entitled to be registered as a voter, if he or she has resided
in the colony for six months, and is entitled to vote after being registered for six months ;
and is also entitled to a property vote in every District in which he or she has a freehold
qualification of £50 capital value, a leasehold or household qualification of £10 a j^ear, or
a Crown lease or license of £5 a j'ear. (Constitution Acts Amendment Act, 1899.)
Number of electors on the roll for the year 1897 (before the extension of the franchise
to women), 15,029.

Tamiania. — Every man of the age of 21 years, being a natural-born or naturalized
British subject, or having letters of denization, or a certificate of naturalization, who has
resided in Tasmania for 12 months, is entitled to vote in any District if (1) his name
appears in the assessment roll as owner or occupier of any property within the District ;
or (2) if he resides in the District, and is in receipt of income, salary, or wages of £40 a
year. Board and residence, clothing, and services, are deemed income ; house allowance
and rations are included in the computation of wages. There is no limit to the number
of districts in which an elector may have a property qualification. (Constitution Act
Amendment Act, 1896, No. 2 [60 Vic. No. 54].) Number of electors on the roll for the
year 1898, 31,613.

New Zealand.— Y^yevy inhabitant of New Zealand (male or female) of the age of 21
years, resident for one year in the colony, and for 3 months in an Electoral District, is
entitled to vote in the District. There is no plural voting. Electoral Act, 1893 [No.
18] ; Electoral Act Amendment Act, 1896 [No. 49].) Number of electors on the roll for
1896, male, 196,925 ; female, 142,.305 ; total, 339,230.

General Summary. — These different franchises may be shortlj' described as follows :
— New South Wales and Victoria, one man one vote. Queensland, manhood suffrage,
with plural votes for property. South Australia and New Zealand, ojie adult one vote.
Western Australia, adult suffrage, with plui-al votes for property. Tasmania, a small
property or income qualification, with plural votes for property.

Under this clause electors of a State who are qualified under the laws thereof to
vote for representatives in the State legislature, have the right to vote for members of
the Federal legislature, which has power, bj' law, to protect such persons in that right.
(Ex parte Siebold, 100 U.S. 371 ; ex parte Clarke, 100 U.S. 399 ; United States v. Gale,
109 U.S. 65. Cited in Baker, Annot. Const, p. 4.)

The qualifications of electors of the more numerous branch of the State legislature
are not necessarily uniform in the various American States. In some cases aliens, who
have declared their intention to become citizens, may vote for representatives to the
State legislature, and so are qualified to vote for representatives in the Federal legisla-
ture. "Electors'" are not necessarily citizens. The State may confer upon aliens the
right to vote within the State, but it cannot make them citizens of the United States.
(Dred Scott v. Sandford, 19 How. 404-414, id. p. 4.)

§ 123. " Each Elector Shall Vote Only Once."

This is a constitutional assertion of the principle of ''one elector one vote" at
federal elections ; it does not interfere with State elections. It will be observed tlmt
no penalty is specified for a breach of this inhibition. As noted under section 8 tiie
framers of the section were of opinion that, as everj- breach of a public statute is a
criminal offence, punishable as a misdemeanour at common law, where the statute makes
no explicit provision as to the mode of punishment, it was not necessary to encunil)er
the Constitution with a penalty. (R. v. Walker [1875] L.R. 10 Q.B. 365; R. v. Hall
[1891] 1 Q.B. p. 767. See Note, § 76, mpra.)

^ 124.] THE HOUSE OF REPRESENTATIVES. 471

Application of State laws.

31. Until the Parliament otherwise provides, but subject
to this Constitution, the laws in force in each State for the
time beingf relating: to elections^-"* for the more numerous
House of the Parliament of the State shall, as nearly as
practicable, apply to elections in the State of members of the
House ot Representatives.

UsiTED Statbs. — The times, places, and manner of holding elections for . . representatives,
shall be prescribed in each Stat« by the le^laciire thereof ; but the congress may at any
time, by law, make or alter such regulations, except as to the place of choosing senators. —
Const. .\rt. I , sec. iv., subsec. 1.

Caxada. — Until the Parliament of Canada otherwise provides, all laws in force in the several
Provinces at the Union relative to . . . the voters at elections of such members, the
oaths to be taken b.v voters, the returning officers, their powers and duties, the proceed-
ings at elections .... and the execution of new writs, in case of seats vacated
otherwise than by dissolution,— shall respectively apply to elections of members to serve
in the House of Conmions for the same several Provinces. — B.X. A. Acl. 1S67, sec 41.

HisTOBiCAL Note. — Clause 4.3, Chap. I. of the Commonwealth Bill of 1891, was as
follows : —

" Until the Parliament of the Commonwealth otherwise provides, the laws in force
in the several States, foi the time being, relating to the following matters, namely : The
manner of conducting elections for the more numerous House of the Parliament, the
proceedings at such elections, the oaths to be taken by voters, the Returning Officers,
their powers and duties, the periods during which elections may be continued, the
execution of new writs in case of places vacated otherwise than by dissolution, and
offences against the laws regulating such elections, shall respectively apply to elections
in the several States of members to serve in the House of Representatives."

In Committee, Mr. Barton suggested omitting this list of matters, and substituting
*• elections for the more numerous House of the Parliament," but Sir Samuel Griffith
thought that would be too wide, and no amendment was moved. (Conv. Deb., Syd.
[1891], pp. 652-3.)

At the Adelaide session, 1897, the clause was introduced and passed in substantially
the same form. At the Melbourne session, after the first report, the clause w£is omitted,
and a new clause (44a) was inserted, practically in the words of this section, but dealing
with elections for both Houses. (Conv. Deb., Melb., pp. 1840, 1855. See Historical
Note, sec. 10). After the fourth report, the clau.se was restored in its present form.

§ 124. " Laws Relating to Elections."

The application of State laws in Federal elections has been already discussed under
section 10 (see Note, § 80, supra.)

The implied power of the federal legislature is as much a part of the constitution as
any of the expressed powers. Under this implied power it may provide by law for the
protection of voters at elections of representatives, and may affix punishment for hinder-
mg or intimidating or maltreating voters intending to vote at such election. (Ex parte
Yarbrough, 110 U.S. 651. Cited in Baker, Annot. Const, p. 9.)

At an election of burgesses for Parliament, the plaintiif, being entitled to vote,
tendered his vote for two candidates ; but such vote was refused, and notwithstanding
those candidates for whom the plaintiff tendered his vote were elected, yet he brought
an action against the constables of the Borough for refusing to admit his vote. It was
decided that the action was maintainable, for it was an injury, though without any
special damage. (Ashby v. White ; Smith's Leading Common Law Cases, 9th ed. vol.
i. p. 268. )

The provision of the laws relating to election of federal representatives which
authorizes the deputv marshals to keep the peace at such election is constitutional.
(Habeas Corpus Cases, KX) U.S. 371, 399. Cited in Baker, Annot. Const, p. 10.)

The federal legislature has power to fix penalties for violation of election laws, and
for interference with electoral officers. In making electoral regulations, the federal
I legislature need not assume exclusive control. It has a super\'isory power over the sub-

472 COMMENTARIES ON THE CONSTITUTION. [See. 32.

ject, and may either make entirely new regulations, or may supplement or modify the
regulations made by the States. {Habean Corpus Cases, 100 U.S. 371, 399,404,422.
Id. p. 10.)

Rights and immunities created by or dependent upon the constitution can be pro-
tected by the federal legislature ; with which the determination of the form and manner
of such protection lies. (United States v. Reese, 92 U.S. 214. Id. p. 10.)

Writs for general election.

32. The Governor-General in Council may cause writs to
be issued^^^ for general elections of members'^*' of the House
of Representatives.

After the first general election, the writs shall be issued
within ten days from the expiry of a House of Representa-
tives or from the proclamation of a dissolution thereof

Canada. — For the first election of members to serve in the House of Commons, the Governor-
General shall cause writs to be issued by such person, in such form, and addressed to such
Returning Officers as he thinks fit. — B.N. A. Act, 1867, sec. 42.

Historical Note. — Clause 42, Chap. 1., of the Commonwealth Bill of 1891 was as
follows : —

"For the purpose of holding general elections of members to serve in the House of
Representatives the Governor-General may cause writs to be issued by such persons, in
such form, and addressed to such Returning Ofticers, as he thinks fit."

At the Adelaide session, the clause was passed in the same form, with the addition
of the words : " The writs shall be issued within ten days from the expiry of a Parlia-
ment, or from the proclamation of a dissolution." At the Sj'dney session, a verbal
amendment suggested by the Legislature of Tasmania was negatived. (Conv. Deb., Sj'd.
[1897], p. 463.) At the Melbourne session, on Dr. Cockburn's motion, the words •' in
Council" were added after "Governor-General." (Conv. Deb., Melb., pp. 1929-31.)
Verbal amendments were made before the first report and after the fourth report.

§ 125. " The Governor-General in Council may Cause
Writs to be Issued."

The question whether this section ought to have been framed so as to read that the-
writs should be issued by '* the Governor-General " or by " the Governor-General in
Council " was the subject of debate in the Convention. In the Adelaide Draft of the
Constitution, the clause (then 41) provided that "the Governor-General" might cause
writs to be issued. At the Melbourne Session Dr. Cockbum took objection to tliis form,
and proposed to insert the words "in Council." He submitted that without the
addition of these words it would appear that the issue of the writs was a prerogative
act, which the Governor-General could direct to be done without the advice of the
Executive Council. In reply to this it was suggested that at the time of the holding of
the first Federal elections there might not be an P^xecutive Council in existence, and the
issue of the writs would, in that event, necessarily be a per.sonal act of the Governor-
General. This view, however, was not generally concurred in, as one of the hrst
executive acts of the Queen's Representative after the establishment of the Coniinon-
wealth would be to send for some leading statesman to form a Federal Ministry, which
would of course constitute the first Executive Council. It was pointed out that, even u
the propo.sed words were not inserted, the Governor-General would not act in such a
matter without the advice of his ministers. Eventually the words were added. (Set-
Note, § 60, sii,pra.)

§§ 126-127.] THE HOUSE OF REPRESENTATIVES. 47a

§ 126. '' General Elections of Members."

The writs for general elections of members will be issued by the Governor-General
in Council, through one of the Miuisters of State. They will be directed to Returning
Officers appointed by the Governor-General in Council, and will contain all the instruc-
tions and authority usually embodied in documents of this description, prescribing
among other things the date for the receipt of nominations of candidates, the date for
the holding of the elections, and the date for the return of the writs.

" At the beginning of a Parliament, the Return Book, received from the clerk of the
Crown, is sufficient eN^idence of the return of a member, and the oaths are at once
administered If a member be elected after a general election, the clei'k of the Crown
sends to the Clerk of the house a certificate of the return received in the Crown Office ;
and the member must obtain a certificate from the Public Bill Office of the receipt of
that certificate for production at the table, before the Clerk of the house will admiuister
the oath." (May, 10th ed. p. 165.)

Writs for vacancies.

33. Whenever a vacancy happens^'^ in the House of
Representatives, the Speaker shall issue his writ for the
election of a new member, or if there is no Speaker or if he
is absent from the Commonwealth the Governor-General in
Council may issue the writ.

Historical Note. — The clause in the Commonwealth Bill of 1891 was substantially
to the same effect, except that the Speaker, unless the House was not sitting, was only
empowered to issue the writ "upon a resolution of the House." In Committee, Dr.
Cockburn moved the omission of these words, but this was negatived. (Conv. Deb.,
Syd. [1891], pp. 641-3.)

At the Adelaide session, 1897, the clause was introduced in the same form. In Com-
mittee, Sir George Turner moved the omission of the words "upon a resolution of the
House," and this time the amendment was agreed to. (Conv. Deb., AdeL, pp. 734-5.)
At a later stage the clause was consequentially amended. (Conv. Deb., Adel , pp.
1197-8.) At the Melbourne session, amendments were made before the first report and
after the fourth report.

§ 127. "Whenever a Vacancy Happens."

Casual vacancies may happen, during the currency of each House of Represen-
tatives, b}- the death or resignation of a member, by the expulsion of a member for
some offence not provided for bj- the Constitution, or by a member becoming subject to
any of the disabilities mentioned in sections 44 and 45. When such vacancies arise the
Speaker is authorized to issue writs for the election of new members. Such writs may
be issued during a recess without the immediate authoritj' of the House, in order that
a representative may be chosen without loss of time by the division which is deprived
of its member. (May, 10th ed. p. 599.)

474 COMMENTARIES ON THE CONSTITUTION. [Sec. 34.

Qualifications of members.

34. Until the Parliament otherwise provides, the quali-
fications of a member^^^ of the House of Representatives shall
be as follows : —

(i.) He^^^ must be of the full age of twenty-one
years'^", and must be an elector entitled to vote
at the election of members of the House of
Kepresentatives, or a person qualified to
become such elector, and mu&t have been for
three years at the least a resident^^^ within the
limits of the Commonwealth as existing at
the time when he is chosen :
(ii.) He must be a subject of the Queen^^^ either
natural- born or for at least five years natu-
ralized under a law of the United Kingdom,
or of a Colony which has become or becomes
a State, or of the Commonwealth, or of a
State.

United States. — No person shall be a representative who shall not have attained to the age of
twenty-five years, and been seven years a citizen of the United States, and who shall not,
when elected, be an inhabitant of that State in which he shall be chosen. — Const., Art. I.,
sec. 2, sub-sec. 2.

Canada. — Until the Parliament of Canada otherwise provides, all laws in force in the several
Provinces at the Union relative to . . . the qualifications and disqualifications of
persons to be elected or to sit or vote as members of the House of Assembly in the several
Provinces .... shall respectively apply to elections of members to serve in the
House of Commons for the same several Provinces. — B.N. A. Act, 1867, sec. 41.

Switzerland.— Every lay Swiss citizen who has the riffht to vote is elijjible for membership in
the National Council. — Const.-, Art. 75.

Historical Note. — In the clause as introduced at the Sydney Convention of 1891,
the qualification was permanently fixed, the words " until the Tarliament otherwise
provides " being absent. The qualification was substantially the same, except that no
period of residence or naturalization was required. In Committee, on Mr. Deakin s
motion, a requirement of three years' residence within the Commonwealth was added ;
and on Mr. Cuthbert's motion, the same period of naturalization was prescribed. (Conv,
Deb., Syd. [1891], pp. 639-40.)

At the Adelaide session, 1897, the clause was introduced and passed in substantially
its present form. In Committee, Mr. Walker proposed to substitute " twenty-five
years" for "twenty-one years," but this was negatived. (Conv. Deb., Adel., p. 733.) At
the Sydney session, Mr. Lewis raised the question whether under this clause women
would be eligible as members of the Parliament. A suggestion of the Legislature of
Tasmania, requiring a member to be for three years a resident of the State for whicli he
is chosen, was negatived. (Conv. Deb., Syd. [1897], pp. 457-8.) At the Melbourne
session, drafting amendments were made before the first report and after the fourth
report.

§ 128. '' Qualifications of a Member."

An analysis of this section is given in the notes to sec. 16, which provides that the
qualifications of a senator shall be the same as those of a member of the House of Repre-
sentatives. (See Note, § 95.)

^§ 128-1-29.] THE HOUSE OF REPRESENTATIVES. 475

" The qualifications or positive requirements for holding a seat in the House of
Commons are but three, viz. : the male sex, the full age of twenty-one years, and the
<}uality of citizen or subject, either by birth or naturalization. The first of these require-
ments rests upon custom, which, therefore, either house might change through the
«xercise of its residuary power to judge of the qualifications of its members. The
second and third, however, rest upon statutes of Parliament and cannot be modified by
either house alone." (Burgess Political Sc. II. p. 69.)

The constitution having fixed the qualification of members, no additional qualifi-
cation can be added bv the States. (Barney r. McCreery, CI. and H. 176 ; Turner r.
Marshall, 1 Cong. El.'Cas. 167 ; Trumbulls Ca-se, id 61S.) The Constitution of Illinois
(1W8) provided that : " The judges of the Supreme and Circuit Courts shall not be
eligible to any other otfic-e of public trust or profit in this State or the United States
during the term for which they shall be elected, nor for one year thereafter." The
House of Representatives of the United States held that this provision was void, in so
far as it applied to persons elected members of the said house. (Tumey r. Marshall,
wtpra ; TrumbuU's Case, mipra. Cited in Baker, Annot. C'onst. p. 5.)

The returns from the state authorities, showing or declaring that a certain person
has been elected representatiA'e or senator in congress, are prima facie evidence of quali-
fication only. (Spaulding r. Mead, CI. and Hall, 157 ; Reed v. Cosden, id. 353.) And
the refusal of the executive of the State to grant a certificate does not prejudice the
right of one entitled to a seat." (Richards' Case, CI. and Hall, 95. Id. p. 10.)

In determining qualification each house has the right to examine witnesses and
require the production of papers, and may punish witnesses for contumacy. (Kilboum
i: Thompson, 103 U.S. 168. Id. p. 10.)

§ 129. "He."

The personal pronoun " he" here used in introducing the qualification of members,
being in the masculine gender, naturally suggests the querj- whether women are dis-
qualified by the Constitution. This cannot be answered without considering some of
the other qualifications required. Thus, a member must be an elector entitled to vote
at the election of members of the House of Representatives, or a person qualified to
become an elector. Are persons ha\'ing the right to vote and otherwise constitutionally
qualified, entitled to be nominated for election irrespective of sex ? If the pronoun " he "
had not been made the subject of an express interpretation by an Imperial Act, there
would Ije little doubt that males only would be qualified. By the Interpretation Act
(1889), 52 and 53 Vic. c. 63, re-enacting 13 and 14 Vic. c. 21. commonly known as Lord
Brougham's Act, it is declared (sec. 1) that " In this Act and in ever}' Act passed after
the year 1S50, whether before or after the commencement of this Act, unless the con-
trary intention appears, words importing the masculine gender shall include females."
The Constitution ot the Commonwealth being embodied in an Imperial Act may be
fairly considered as capable of interpretation by the anterior Imperial Act. (See Note,
§ 330, infra. ) If this be the true construction then " he " includes " she " unless the con-
trary intention appears.

The use of the Interpretation Act in the construction of an electoral law was con-
sidered in England in the case of Beresford Hope v. Lady Sandhurst (1889), 23 Q.B.D.
79. In this case the question was whether a woman was capable of being electe<l a
member of the London Count\- Council. It depended on the meaning of several Acts of
, Parliament connected bj' references to them in the Local Government Act of 1888. By
j sec. 2 of that Act it was provided, that a County Council should be constitutetl in like
I manner to the Council of a Borough divided into wards. Reference had, consequently, to
be made to the Municipal Corporations Acts in order to ascertain who were qualified to
j vote for and to become members of the County CounciL By the Municipal Corporations
1 Act (1835), 5 and 6 Wm. IV. c. 76, s. 9, the municipal franchise was confined to "male
^ persons of full age." In 1S69 that section was repealed by the Act 32 and 33 Vic. c. bo,
sec. 1, which re-enacted it with the word " male " omitted. Sec. 9 of that Act declared
that wherever therein " words occur which import the masculine gender the same shall
be held to include females for all purposes connected with and having reference to the
'"ght to vote on the election of councillors, auditors, and assessors." The qualifications

476 COMMENTARIES ON THE CONSTITUTION. [Sec. 34

of burgesses and councillors were further dealt with in the Consolidating Municipal Cor-
poration Act, 1892 ; (45 and 46 Vic. c. 50), sec. 11, sub-sec. 2, which enacted that "a
person shall not be qualified to be elected or to be a councillor unless he is enrolled and
entitled to be a burgess ;" whilst sec. 03 enacted that "for all purposes connected with
and having reference to the right to vote at Municipal elections words in this Act
importing the masculine gender include women." In this state of the law Lady
Sandhurst was elected a member of the County Council. An application was made to
the High Court to remove her from the office. On her behalf it was argued that th©
true effect of the Act of 1892 was to give a right to women to sit in the Municipal
Councils, and therefore in the County Council : that as there was nothing to restrain
the generality of the words, the provisions of Lord Brous;ham's Act should be applied,
and as a woman was qualified to vote she was qualified to be elected.

The majority of the Court of Appeal (Coleridge, G. J., Cotton, Lindley, Fry, and
Lopes, L.JJ.) were of opinion that, if the argument stood there, it could not be denied
that there was a very strong case in support of Lady Sandliurst's claim ; that there waa
much to be said in favour of applying the language of Lord Brougham's Act, and holding
that as a woman was qualified to elect, although the masculine gender was used, slie
would be qualified also to be elected. Unfortunately for that argument, which by itself
would be very strong, there was the 63rd section which appeared to exclude the opera-
tion of Lord Brougham's Act, by limiting the right of women to the right to vote and
thus excluding the right to be elected. Lady Sandhurst was accordingly held to be
unqiialified. Lord Esher, M.R. , entertained a stronger view than his learned colleagues,
and said, that, but for sec. 9 of the Act of 1869, succeeded by sec. 63 in the Act of 1882,
he would have come to the conclusion that women were not intended to be either
electors or councillors, and that those sections clearly limited this qualification of
women to that of electors.

In the Constitution of the Commonwealth there is no such section as that held to be
fatal to Lady Sandhurst's claim. Consequently, it is quite possible that the Imperial
Interpretation Act may be held to apply to the interpretation of the pronoun " he." If
that be so, a woman qualified as an elector in South Australia, or in Western Australia,
would be qualified to be elected a member of the Federal Parliament, not only in her
own State, but in any other State. The question of qualification, whenever legally
raised, will have to be determined by the Senate or by the House of Representative*
respectively, as the case maj' arise in connection with the elections of members of those
Houses (sec 47).

§ 130. " Of the Full Age of Twenty-one Years."

The Constitution of the United States of America, supra, provides that no person
shall be a representative who is under the age of twenty-five years. The Canadian
Constitution, supra, accepts, as the qualifj'ing age of members elected in the several
Provinces, the age fixed by the laws of the Provinces respectively ; power being reserved
to the Dominion Parliament to enact a uniform qualification.

" By standing order No. 12, the Lords prescribe that no lord under the age of
twenty-one years shall sit iu their house. By the 7 and 8 Will. III. c. 25, s. 8, a minor
was disqualified to be elected to the House of Commons. Before the passing of that Act,
several members were notoriously under age, yet their sitting was not objected to. Sir
Edward Coke said that they sat ' by connivance ; but if questioned would be put out ' ;
yet on the I6th Uecember, 1690, on the hearing of a controverted election, Mr.
Trenchard, though admitted by his counsel to be a minor, was declared, upon a division,
to be duly elected. And even after the pa.ssing of tlie Act of Will. III., some minor.-; sat
' by connivance.' Charles James Fox was returned for Midhurst when ho was nineteen
years and four months old, and sat and spoke before he was of age ; and Lonl John
Russell was returned for Tavistock a month before he came of age." (May, lOtli e<l.
p. 28.

§ 131.] THE HOUSE OF REPRESENTATIVES. 477

§ 131. "A Resident."

A resident is defined as one who dwells at a place which is his home or fixed abode
for some time. An inhabitant is one who dwells permanenth' in a place, as distinguished
from a transient resident or visitor. The term of residence within the limits of the Com-
monwealth, necessary to qualify a person to be a member of the Federal Parliament, is
fixed by the Constitution at three years. It has been held that residence is not broken /
by a temporary absence if there is an animus rererteitdi. (Holborn Union r. Chertsey ;
Union [1884] 54 L.J. M.C. 53.)

The Constitution of the United States of America, supra, provides that no person
shall be a representative who is not, when elected, "an inhabitant of the State" in
which he is chosen. The Constitution of the Commonwealth gives a wider qualification,
by making a person who has resided for three years within the limits of the Common-
wealth qualified to be a member. The requirement of a three years' residence within the
limits of the Commonwealth is insisted on in order to secure the services of members
aubstantialh' identified with the Commonwealth, but not necessarily identified for three
years with anj- particular State, as " an inhabitant of that State."

The word "resident" in this Constitution is not synonymous with "inhabitant."
An inhabitant of a State within the meaning of the American Constitution is one who in
Ifood faith is a member of the State and subject to its jurisdiction and to its laws, and
entitled to all the privileges and advantages conferred thereby. (Electors v. Bailey, CI.
and H. 411 ) Mr. McCrary, referring to this distinction, says, "it would seem that'
the framers of the constitution were impressed with a deep sense of the importance of an
actual honajide residence of the representative among the constituency — a residence in
the sense of actual living among them and co-mingling with them." (McCrary on
Elections, § 289 ; Baker, Annot. Const. 5. )

The Constitution of the Commonwealth does not insist upon such a permanent
residence in and identification with one State as a qualification of membership of the
national Chamber. It recognizes citizenship, and residence within the Commonwealth
^or a period of three jears, as a sufficient qnalification, and one calculated to promote the
lew that a member of the national House is not a member for a State, or for the people
of a State, but for a division which includes a quota of the people of the Conunonwealth

"The choice of memljers of Congress is locally limited by law and by custom.
Under the Constitution every representative and every senator must when electefl be an
inhabitant of the State whence he is elected. Moreover. State law has in man}, and
custom practically in all. States, established that a i-epresentative must be resident in
the congressional district which elects him. The only exceptions to this practice occur
in large cities where occasionally a man is chosen who lives in a different district of the
eity from that which returns him ; but such exceptions are extremely rare. This
restriction surprises a European, who thinks it must be found highly inconvenient both
to candidates, as restricting their field of choice in looking for a constituency, and to
constituencies, as excluding persons, however eminent, who do not reside in their midst.
To Americans, however, it seems so obviouslj' reasonable that I found very few persons,
even in the l)est educated classes, who would admit its policy to be disputable." (Bryce,
Amer. Comm. 1. p. 186.)

" It is remarkable that the original English practice required the member to be a
resident of the county or borough which returned him to Parliament. This is said to be
a requirement at common law (witness the words ' de comitatu tuo' in the writ for the
election addressed to the sheriff) ; and was expressly enacted by the statute 1 Henry V.
cap. 1. But already in the time of Elizabeth the requirement was not enforced ; and in
1681 Lord Chief Justice Pemberton iniled that * little regard was to be had to that
ancient statute 1 Henry V. forasmuch as common practice hath been ever since to the
contrary.' The statute was repealed by 14 Geo. III., cap. 50. (See Anson, I.aw and
Custom of the Constitution, vol. i. p. 83 ; Stubbs, Constit. Hist. vol. iii. p. 424 ) Dr.
Stnbbs observes that the object of requiring residence in early times was to secure ' that
the House of Commons should be a really representative body.' Dr. Hearn (Government
of England) suggests that the requirement had to be dropped because it was hard to
find the country gentlemen (or indeed burgesses) possessing the legal knowledge and
statesmanship which the constitutional struggles of the sixteenth aud seventeenth
centuries demanded." (/rf. p. 188.)

478 COMMENTARIES ON THE CONSTITUTION. [Sec. 34.

" The Englisli habit of allowing a man to stand for a place with which he is per-
sonallj' unconnected would doubtless be favoured by the fact that many ministers are
necessarily members of the House of Commons. The inconvenience of excluding a man
from the service of the nation because he could not secure his return in the place of his
residence woidd be unendurable. No such reason exists in America, because ministers
cannot be members of Congress. In France, Germany, and Italy the practice seems to
resemble that of England, i.e., many members sit for places where they do not reside,
though of course a candidate residing in the place he stands for has a certain advantage."
{Id. p. J 88.)

§ 132. " Subject of the Queen."

Natural-born Subjects. — At common law everybody, whose birth happens within
the allegiance of the Crown, is a natural-born subject. " The character of a natural-
born subject, anterior to any of the statutes, was incidental to birth only ; whatever
were the situations of his parents, the being born within the allegiance of the king cou-
stitutes a natural-born subject." (Per Kenyon, C.J., in Doe d. Durore v. Jones [1791],
4 T.R. p. 308 ; 2 R.R. 390.) This is still a ruling principle of our law. Children born
in an English ship ai'e born within the allegiance, and an ambassador's house is also
reputed to be part of his sovereign's realm, so as to confer upon the children of the
ambassador born therein the character of natural-born subjects. The status of the
parents is of no account, pi'ovided only the offspring be born within the realm. "A
child born of foreign parents, even during an accidental stay of-a few days, is fully, and
until the age of twenty-one years irretrievably, a British subject." (Hall, Foreign
Jurisdiction, p. 20.) The character of a natural-born subject is not given to persons
born in a place which, though rightfully part of the dominions of the British Crown,
happens to be at the time of the birth in the military possession of an enemy. The
learning, old and new, of the subject will be found very fully in Calvin's Case (1608), 7
Coke Reps. 1, 18a ; Collingwood v. Pace (1656), 1 Vent. 413 ; Ue Geer v. Stone (1882).
22 Ch. D. 243 ; Be Stepney Election Petition, Isaacson v. Durant (1886), 17 Q.B.I). 54 ;
Encyclopedia of the Laws of England, vol. ix. p. 57 ; Westlake, Private International
Law, Chap. XV.

By statute, children born out of the British Dominions, whose fathers or whose
paternal grandfathers were natural-born subjects, are, except in certain cases, entitled to
the rights of nattiral-born subjects. (See Imperial Acts, 4 Geo. II. c. 21, ss. 1, 2: \^
Geo. III. c. 21 ; Notes, § 193, " Aliens," infra.)

Naturalized Sub.jects. — Naturalization is the procedure by which an alien or
foreigner is made a subject or citizen of any State. It is a legal adoption by one State
of a person who is the subject or citizen of another State, admitting him tt) take part in
its national polity, and conferring on him the rights and privileges of a national-boro
subject or citizen. (See Note, § 194, " Naturalization," infra.)

" An alien is disqualified to be a member of either House of Parliament. The Act
12 and 13 Will. III. c. 2, declared that ' no persons born out of the kingdoms of Eng-
land. Scotland, or Ireland, or the dominions thereunto belonging (although he be
naturalized or made a denizen, except such as are born of English parents), shul be
capable to be of the privy council, or a member of either House of Parliament.' J he 1
Geo. I. Stat. 2, c. 4, in order to enforce the provisions of the Act of William, required a
special clause of disqualification to be inserted in every Naturalization Act ; but as no
clause of this nature could bind future Parliaments, occasional exceptions were permuted,
as in the cases of Prince Leopold in 1816, and Prince Albert in 1840 ; and this provi.sion
of the Ist George I. was repealed by the 7 and 8 Vic. c. 66, s. 2. Later Natuiahzatiou
Acts have since been passed, without such a disqualifying clause. And by the 33 and .«
Vic. c. 14, an alien to whom a certificate of naturalization is granted by the Secretary
of State, becomes entitled to all political and other rights, powers, and privileges, an<l i»
subject to all the obligations of a British subject." (May's Pari. Prac. 10th ed. p. ^i-o-}

§ 133.] THE HOUSE OF REPRESENTATIVES. 479

Election of Speaker.

35. The House of Representatives shall, before proceed-
ing to the despatch of any other business, choose a member to
be the Speaker^^^ of the House, and as often as the office of
Speaker becomes vacant the House shall again choose a
member to be the Speaker.

The Speaker shall cease to hold his office if he ceases to
be a member. He may be removed from office by a vote of
the House, or he may resign his office or his seat b}'- writing
addressed to the Governor-General.

Caxada. — The House of Commons, on its first assembling after a general election, shall proceed

with all practicable speed to elect one of its members to be Speaker.— B.N. A Act, 1867, sec.

44.
In case of a vacancy happening in the office of Speaker by death, resignation, or otherwise, the

House of Commons shall, with all practicable spieed, proceed to elect another of its

members to be Speaker. — Id. sec. 45.
The Speaker shall preside at all meetings of the House of Commons —Id. sec. 46.

HiST0Ric.4L Note. — Similar provisions are in the Constitutions of all the Australian
colonies. In the Commonwealth Bill of 1891, the clause was substantiallj- to the same
effect, with the addition of a prosMsion that " the Speaker shall preside at all meetings
of the House of Representatives ; and the choice of a Speaker shall be made known to the
Governor-General by a deputation of the House." At the Adelaide session, 1897, the
clause was adopted in the same form ; and at the Melbourne session drafting amendments
were made before the first report and after the fourth report.

§ 133. "The Speaker."

" The note of the Speaker of the British House of Commons is his impartiality.
I He has indeed been chosen by a party, because a majority means in England a party.
But on his way from his place on the benches to the Chair he is expected to shake off
and leave behind all party ties and sympathies. Once invested with wig and gown of
office he has no longer any political opinions, and must administer exactly the same
treatment to his political friends and to those who have hitherto been his opponents, to
the oldest or most powerful minister and to the youngest or least popular member. His
duties are limited to the enforcement of the rules and generally to the maintenance of
order and decorum in debate, including the selection, when several members rise at the
same moment, of the one who is to carry on the discussion. These are duties of great
importance, and his position one of great dignity, but neither the duties nor the position
knply political power. It makes little difference to any English party in Parliament
whether the occupant of the chair has come from their own or from the hostile ranks.
The Speaker can lower or raise the tone and efficiency of the Hou.se as a whole hy the
way he presides over it ; but a custom as strong as law forbids him to render help to his
own side, even by private advice. Whatever information as to parliamentary law he
'may feel free to give must be equally at the disposal af every member." (Bryce, Araer.
Comm. I. p. 1:34-5 )

" The duties of the Speaker of the House of Commons are as various as they are
nportant. He presides over the deliberations of the house, and enforces the observance
' all rules for preserving order in its proceedings ; he puts every question, and declares
he determination of the house. As ' mouth ot the house,' he communicates its resolu-
ions to others, conveys its thanks, and expresses its censure, its reprimands, or its
Imonilions. He issues warrants to execute the orders of the house for the commit-
lent of offenders, for the issue of wi'its, for the attendance of witnesses in custody, for
lie bringing up prisoners in custody, and giving effect to other orders requiring the
anction of a legal form. He is, in fact, the representative of the house itself, in its
wwers, its proceedings, and its dignity. When he enters or leaves the house, the mace
' borne before him by the Serjeant-at-arms ; when he is in the chair, it is laid upon the
ible ; and at all other times, when the mace is not in the house, it remains with the
peaker, and accompanies him upon all state occasions. The Speaker is responsible for

480 COMMENTARIES ON THE CONSTITUTION. [Sec. 36.

the due enforcement of the rules, rights, and privileges of the house, and when he rises
he is to be heard in silence. In accordance with his duty, he declines to submit motions
to the house, which obviously infringe the rules which govern its proceedings ; such as a
motion which would create a charge upon the people and is not recommended by the
Crown ; a motion touching the rights of the Crown, which has not received the royal
consent ; a motion which anticipates a matter which stands for the future consideration
of the house, which raises afresh a matter already decided during the current session,
■or is otherwise out of order. If a proposed instruction to a committee be out of order,
the Speaker explains the nature of the irregularity. Amendments by the Lords to a
bill which trench upon the privileges of the House of Commons, are submitted to the
Speaker ; and, if occasion requires, he calls the attention of the house to the nature of
the amendments, and gives his opinion thereon. The Speaker also has decided that
motions, which were brought forward as a matter of privilege, did not come within that
•categor}'." (May's Pari. Prac. 10th ed. p. 187-8.)

" In rank, the Speaker takes precedence of all commoners, both by ancient custom
and by legislative declaration. The Act I. Will, and Mary, c. 21, enacts that the lords
commissioners for the great seal ' not being peers, shall have and take place next after
the peers of this realm, and the Speaker of the House of Commons.' By 2 and 3
Will. IV. c. 105, an Act for the better support of the dignity of the Speaker of the
House of Commons, and by 9 and 10 Vic. c. 77, an Act relating to the officers of the
house, it is provided that, in case of a dissolution, the then speaker shall be deemed to
be the Speaker, for che purposes of those Acts, until a Speaker shall be chosen by the
New Parliament." (7(Z. p. 190.)

Absence of Speaker.

36. Before or during any absence of the Speaker"*, the
House of Representatives may choose a member to perform
his duties in his absence.

Canada. —Until the Parliament of Canada otherwise provides, in case of the absence tor any
reason of the Speaker from the Chair of the House of (Commons for a period of forty-eiirht
consecutive hours, the House may elect another of its members to act as Speaker, and the
member so elected shall, during the continuance of such absence of the Speaker, have and
execute all the powers, privileges, and duties of Speaker.— B.N. A. Act, sec. 47.

Historical Notk. — In the Commonwealth Bill of 1891, the introductory words of
the clause were " In case of the absence of the Speaker." In the clause so introduced
and adopted at the Adelaide session, 1897, these introductory words were omitted. At
tlie Sydney session, the clause was altered by the Drafting Committee to its present
form. (See Historical Note, sec. 18.)

§ 134. "Absence of the Speaker."

" Formerly no provision was made for supplying the place of the Speaker by ft
deputy Speaker pro tempore, as in the Upper House, and, when he was unavoidably
absent, no business could be done, but the Clerk acquainted the House with the cause of
his absence, and put the question for adjournment. When the Speaker by illness waa
unable to attend for a considerable time, it was necessary to elect another Speaker, with
the usual formalities of the permission of the Crown, and the royal approval. On the
recovery of the Speaker, the latter would resign, or ' fall sick,' and the former vvM
re-elected, with a repetition of the same ceremonies. In 1855, on the report of a select
committee, standing order No. 83 was agreed to, which enabled the chairman of ways
and means, as deputy Speaker, to take the chair during tlie unavoidable absence of the
Speaker, and perform his duties. The provisions of this standing order roceiveu
statutory authority by Act 18 and 19 Vic. c. 84." (May's Pari. Prac. 10th ed. p. 19b)

f§ 135-136.] THE HOUSE OF REPRESENTATIVES. 4S1

Resignation of member.

37. A member may by writing addressed to the Speaker,
or to the Governor-General if there is no Speaker or if the
Speaker is absent from the Commonwealth, resign his place^^,
which thereupon shall become vacant.

HiarroRiCAL Note. — In the Commonwealth Bill, 1891, the clause was in substantially
ihe same form. At the Adelaide session, 1897, it was introduced and passed exactly as
it stands.

§ 135. "Resign His Place."

" In England it is a settled principle of parliamentary law, that a member, after he I
is duly chosen, cannot relinquish his seat ; and, in order to evade this restriction, a '
member who wishes to retire, accepts office under the Crown, which legally vacates his
seat, and obliges the house to order a new writ. The offices usually selected for this
purpose are the offices of steward or bailiff of her Majesty's three Chilteni Hundreds of
Stoke, Desborough, and Bonenham ; or the steward of the manors of East Hendred,
Korthstead, or Hempholme, which, though the offices have sometimes been refused, are
ordinarily given by the Treasury to any member who applies for them, unless there
appears to be sufficient ground for withholding them. The office is retained until the
appointment is revoked to make way for the appointment of another holder thereof."
(May's Pari. Prac. 10th ed. p. 605.)

" The obligation to serve and to continue to serve during the continuance of the
Parliament has been relaxed, although by a different method. The Chiltem Hundreds
continue, though in a different sense, to afford in the days of Victoria to unwilling
legislators the protection which thev afforded in the days of Edward the Second."
{Heam'sGov. of EngL p. 53.^)

Vacancy by absence***.

I 38. The place of a member shall become vacant if for

two consecutive months of any session of the Parliament he,

I without the permission of the House, fails to attend the
House.

Historical Note. — In the Commonwealth Bill of 1891 the clause was as follows : —

" The place of a member of the House of Representatives shall become vacant if
I for one whole session of the Parliament he, without the permission of the House of
Bepresentatives entered on its journals, fails to give his attendance in the House."

At the Adelaide session, 1897, the clause was introduced in substantially the same

urds ; but in Committee, on Mr. Barton's motion, the words " two consecutive months

of any session " were substituted for '* one whole session." (Con v. Deb., Adel., p. 734.)

I At the Sydney session, a suggestion by the Legislature of Tasmania, to substitute

" thirty consecutive sitting days in any session" was negatived. (Con v. Deb., Syd.

J 897], pp. 460-1.) At the Melbom-ne session, after the fourth report, the words

entered on its journals " were omitted.

§ 136. "Absence."

It is an ancient constitutional rule that every person elected to serve in Parliament
is bound so to serve. "Service in Parliament " was a duty which might be cast upon
1 ererj' person not expressly disqualified ; this duty he could not decline or invade, and
«Ten the Crown could not exempt him from the obligation. It is a consequence of the
awne principle that members are bound to attend during the whole time that Parliament
is sitting. Several Acts have been passed in England to enforce this dutj- ; and though

482 COMMENTARIES ON THE CONSTITUTION. [Sec. 39.

the Crown does not now interfere, the House of Commons claims, and occasionally
exercises, the right to compel the attendance of all its members by a " call of the House.'
(Hearn, Gov. of Eng. pp. 532-3.)

Where a statute provided that "if any legislative councillor shall for two successive
seasons fail to give his attendance, without permission, his seat shall thereby become
vacated," and a councillor absented himself during the whole of three sessions, having
previously obtained a permission for a year, which period of time, in the event, covered
the whole of the first and part of the second session : Held, that his seat was vacated, aa
the permission did not cover two successive sessions. (Att.-CJen. [Queensland] t;. Gibbon,
12 App. Cas. 442 ; Dig. of Engl. Case Law, vol. 3, p. 493.)

Quorum^ ^'.

39. Until the Parliament otherwise provides, the pre-
sence of at least one-third of the whole number of the members
of the House of Representatives shall be necessary to consti-
tute a meeting of the House for the exercise of its powers.

United States. — . . . a majority of each (House) shall constitute a quorum to do business ;
but a smaller number ma}' adjourn from day to day, and may be authorized to compel the
attendance of absent members, in such manner and under such penalties, as the House
may provide.- Const. Art. I. sec. v. sub-s. 1.

Switzerland. — In either Council a quorum is a majority of the total number of its members. —
Const. Art. 87.

Canada. — The presence of at least twenty members of the House of Commons shall be necessarj-
to constitute a meeting of the House for the exercise of its powers ; and lor that purpose
the Speaker shall be reckoned as a member. — B.N. A. Act, 1867, sec. 48.

Germany.— To render action valid, the presence of a majority of the statutory number of
■ members shall be required — Const. An. 28.

Historical Note. — Clause 39, Chap. I. of the Commonwealth Bill of 1891, was in
the same words, and was adopted verbatim at the Adelaide session, 1897. In Committee
at Adelaide, Mr. Carruthers contended that the quorum was too high, and suggested
•' twenty." This was negatived. (Conv. Deb., Adel. , p. 735.)

§ 137. "Quorum."

The Constitutions of different countries vary widelj' as to the principle of the quorum
and the mode of its determination. In the United States, in Switzerland, in Canada,
and (as regards the Diet) in Germany, the quorum is fixed as a constitutional principle. In
Great Britain, and France, on the other hand, the quorum is regarded as a matter of
internal procedure, which each House determines for itself. This is regarded by Dr.
Burgess as a defect, as it leaves to the caprice of an imdefined number of members of
each House the control over an important structural principle. (Pol. Science II., 124.)
In the British colonies the British example has not been followed, the quorum being
invariably prescribed in their Constitution Acts.

As to the proportion of members which should form a quorum, British and Conti-
nental ideas differ widely. On the Continent of Europe, and in the United States of
America, the most general quorum is an absolute majority of members.

"In those cases where the quorum is fixed by the Constitutions there is substantial
agreement upon the principle that the presence of a majority of the legal number of
members in the House is neces.sary and .sufficient to the transaction of legislative business.
This principle is also adopted as a rule of procedure by both Houses of the French Legis-
lature. The French Senate requires not only the presence of the majority of its
membei's, but also their votes, for or against a motion. The quorum of the absolute
majority, i.e., the majority of the legal number of members, may bo .said to be the
modern principle in general legislation. Its reason is that the majority' represents in
this respect the whole, and is vested with the powers of the whole. If this were not
the principle, legi.slative action would be exposed to the tricks and stratagems of the
minority to an unbearable degree." (Burgess, Pol. Science, ii. 124-5.)

§ 137.]

BOTH HOUSES OF PARLIAMENT. 483

In the British Parliament, on the other hand, the qiioriim of the House of Commons
has, from very early times, been fixed at 40, and that of the House of Lords at 3 ;
though the Houses now number respectisely 670 and 586 members. Dr. Burgess points
out that the fact that, under the British system, legislation is controlled by the
Ministry, would make it unnecessary, and often inconvenient, to require a majority
quorum. (Pol. Science, ii. 125. ) In the Parliaments of British colonies the quorum
fixed is invariably less than an absolute majority ; being sometimes fixed at one-third,
or one-fourth, and sometimes at an arbitrary number representing even a lower pro-
portion.

Voting in House of Representatives.

40. Questions arising in the House of Representatives
shall be determined by a majority of votes other than that of
the Speaker. The Speaker shall not vote unless the numbers
are equal, and then he shall have a casting vote.

Canada. — Questions arising in the House of Commons shall be decided by a majority of voices
other than that of the Speaker, and when the voices are equal, but not otherwise, the
Speaker shall have a vote. — B.N. A. Act, 1867, sec. 49.

HiSTORiCAi, Note. — In the Commonwealth Bill of 1891, and in the Adelaide draft
of 1897, the clause was in substantially the same form. At the Sydney session, a sug-
gestion by the Parliament of Victoria was submitted, to add a proviso that " in case of
a proposed amendment of the Constitution the Speaker maj' vote notwithstanding the
votes are not equal, and in such cases he shall not have a casting vote." It was contended
that in the important case of a constitutional amendment, where an absolute majority
was required, the Speaker ought not to be deprived of the right to give a vote which
might be required to make up the absolute majority. However, the amendment was
negatived. (Conv. Deb., Syd. [1897], pp. 461-3.) At the Melbourne session, a drafting
amendment was made after the fourth report.

PART IV.— BOTH HOUSES OF THE PARLIAMENT.

Right of electors of States.

41. No adult person^^ who has or acquires^^ a right to
vote at elections for the more numerous House of the Parlia-
ment of a State shall, while the right continues, be prevented
by any law of the Commonwealth from voting at elections
for either house of the Parliament of the Commonwealth.

Historical Xote — At the Adelaide session of the Convention, on the discussion
of the qualification of electors of the House of Representatives (see Historical Note,
sec. 30) Mr. Holder proposed that *' every man and woman of the full age of 21 years,
whose name has been registered as an elector for at least six months, shall be an elector."
This was opposed as being likely to prejudice the prospects of the Constitution in the
colonies where women's suffrage had not been adopted, and was negatived bv 23 votes
to 12.

Mr. Holder then, as a compromise, moved an amendment which contained the germ
of the above section ; namely, to add the words : " Xo elector now possessing the right
to vote shall be deprived of that right." The object was to prevent the Federal Parlia-
ment, when declaring a uniform franchise, from depriving the women of South AustraL'a

484 COMMENTARIES ON THE CONSTITUTION. [Sec. 41.

of the right to vote. Without such a provision, the apprehension was expressed that
the women of South Australia might be deprived of the franchise by the Federal
Parliament, and such a possibilitj- might induce them to vote against the Constitution
when submitted to the people. The proposal was at first objected to on the ground that
it would embarrass and fetter the Federal Parliament in framing a uniform franchise ;
that it showed an unreasonable want of confidence in the Parliament ; that the Parlia-
ment might be trusted not to do anything unreasonable or unjust. After some discussion
the proposal was moulded into the following shape : — "But no elector who has at the
establishment of the Commonwealth, or who afterwards acquires a right to vote at
elections for the more numerous House of the Parliament of a State, shall be prevented
by any law of the Commonwealth from exercising such right at the elections for the
House of Representatives." This was carried by 18 votes to 15. (Conv. Deb., Adel.,
pp. 715-82.)

Subsequently Mr. Barton endeavoured to secure the limitation of the claiise to
rights existing at the establishment oi the Commonwealth, but Mr. Holder opposed
this, contending that rights existing up to the time of the adoption of a federal franchise
ought to be protected. The amendment was negatived ; but Mr. Holder met one of
Mr. Barton's objections by inserting the words "while the qualification continues," so
as not to protect any right which had been withdrawn by the State. (Conv. Ueb.,
Adel., pp. 1191-7.) At the Melbourne session, Mr. Barton moved to limit the protection
to rights which any elector " at the establishment of the Commonwealth or afterwards
has under the law in force in any State at the establishment of the Commonwealth."
He pointed out that the clause as passed at Adelaide embodied certain anomalies which
were not intended. He did not object to the provision that a person M'ho at the estab-
lishment of the Commonwealth had a right to vote at State elections should retain a
right to vote at Federal elections, and should not have that right taken away whilst he
remained qualified as a State elector, even though the Commonwealth passed a law for
a uniform suffrage. But luider the clause as passed in Adelaide, a State might extend
its franchise after the establishment of the Commonwealth — not only to women, but
perhaps to all persons over sixteen years of age— and those persons would then acquire
an inalienable right to vote at federal elections. He thought that went too far. Mr.
Holder, however, and those who thought with him, were unable to accept this amend-
ment. They wished to secure the franchise to women in every State which should
adopt adult suffrage after the establishment of the Commonwealth, but before the fixing
of a federal franchise. They were willing to meet Mr. Barton on the question of the
infant vote, and finally he withdrew his amendment with a view to insert, after
"afterwards," the words "being an adult." (Conv. Deb., Melb., pp. 1840-55.) Verbal
amendments ■wei-e made after the fourth report. (See Conv. Deb., Melb., pp. 2447-8.)

§ 138. '\No Adult Person."

The intention of the section is that when the Federal Parliament adopts a federal
franchise it may not deprive any adult person of the right to vote at Federal elections,
who, at that time, has a right to vote at elections for the more numerous House of the
Parliament of his or her State. The interpietation of the section, however, is a matter
of considerable difficulty. The chief question is whether it merely preserves to
individual persons a right to vote at Federal elections, notwithstanding that the general
qualification prescribed by the Parliament does not include them ; or whether it prevents
the Parliament from prescribing any franchise for the Commonwealth which does not
extend throughout the Commonwealth every franchise existing, with respect to adult
persons in any State. The latter view — that Parliament cannot pass any but a uniform
franchise, and that such uniform franchise must level up the franchise in every State to
the level of the widest suffrage then existing— seems to have been hehl by several
members of the Convention. (See Conv. Deb., Adel., pp. 715-25; 1191-7; Melb.,
pp. 1840-55.)

§§ 138-139] BOTH HOUSES OF PARLIAMENT. 48.".

It would seem that the words of the Constitution do not justify this view. The
power of the Parliament to deal with the qualification is derived from the provision in
sec. .SO that "until the Parliament otherwise provides" the qualification of Federal
electors in each State shall be that prescribed by the State for the electors of the
Legislative Assembly of the State. By \nrtue of that provision, the Parliament has
power (sec. 51 — xxxvi. ) to make laws for the peace, welfare, and good government of the
Commonwealth with respect to the qualification of federal electors. The Constitution
does not speak of a "uniform qualification" (except incidentally in sec 128), and does
not restrict the Parliament to prescribing a complete franchise or none.

It was even suggested by Mr. Higgins and Mr. O'Connor (Conv. Deb., Melb.,
pp. 1846-7) that, as a matter of strict law, the Parliament may prescribe different
franchises in different States. This proposition seems much too broad ; it would seem
(see Xote § 161, " Peace. Order and Good Government," infra) that a federal law cannot
discriminate between one State and another. But here a diversity of franchise in the
different States is recognized by the Constitution itself, and it may be fairly argued that
any federal law of uniform application, purporting to define in part or in whole the
federal qualification, would — subject to the rights reserved by this section — be good and
valid, notwithstanding that it did not wholly remove this diversity. ITiis contention
may be best explained by two illustrations. It seems clear that the Federal Parliament
might lawfully pass a prohibitive law (somewhat in the manner of the Fifteenth Amend-
ment of the Constitution of the United States) in such terms as these : —

" Notwithstanding the qualification which may be prescribed by the law of a State
as the qualification of electors for the more numerous House of the Parliament of the
State, no person otherwise qualified by the law of the State shall be prevented from
voting at elections for either House of the Parliament of the Commonwealth by reason
only that such person does not possess a property qualification or a qualification based
on income or earnings."'

There would be no want of uniformity in such a law : on the contrary, it would
remove a discrimination which at present exists. True, the whole franchise would not
be uniform, but it would be more nearly uniform than at present, and the diversity
would be due, not to the Federal Parliament, but to the Constitution itself. (Burgess.
Political Sc II. p. 42.) Again, it is conceived that it would also be competent for the
Parliament to prescribe a franchise affirmatively by such a law as the following : —

" Every male adult subject of the Queen, who has been resident for one year within
the Commonwealth and for three months in any federal electorate or electoral division
shall, unless disqualified by this Act. be entitled to vote in such division at the election
of members of either House of the Parliament. Persons of unsound mind, or in receipt
of eleemosynary aid, or under sentence for any offence, are disqualified. Provided that
this Act shall not be deemed to disqualifj* any adult person who under section 41 of the
Constitution of the Commonwealth has a right to vote at such election."

In such a law, again, there would be no want of uniformity ; it would be distinctly
in the direction of uniformity ; and the diversity which still remained would be due, not
to the Federal Parliament, but to the particular individual rights reserve<i by the Con-
itution itself.

To hold that such laws as these were unconstitutional, because they fell short of

-tablishing a uniform franchise throughout the Commonwealth, would be to hold that

lue Federal Parliament is powerless to move a single step in the direction of imifonnity

unless it is prepared to adopt full manhood and womanhood suffrage. This section, it is

intended, imposes no such prohibition. It does not forbid the Parliament to pass

; anchise laws which do not fulfil certain conditions, but preserves the right of certain

persons, described in the section, to vote notwithstanding such laws.

^ 139. *'Has or Acquires."

The word "has" apparently refers to rights in existence at the establishment of
the Commonwealth; the word "acquires" to rights acquired after that time. At
Adelaide (Conv. Deb., pp. 1191-7) Mr. Barton endeavoured to secure the limitation of

486 COMMENTARIES ON THE CONSTITUTION. [Sec. 41.

the clause to rights existing at the establishment of the Commonwealth, but was
defeated. At Melbourne (Conv. Deb., pp. 1840-53) he endeavoured to limit it to rights
acquired, before or after the establishment of the Commonwealth, under a State law in
force at the establishmeirt of the Commonwealth. This he ultimately withdrew on the
insertion of the word " adult."

It is clear that a right under this section to vote at federal elections can be acquired
after the establishment of the Commonwealth, but it is not so clear that such a right
can be acquired after the passing of a federal franchise law, or under State laws passed
after the passing of such federal law. Three possible interpretations may be sug-
gested : —

(1.) That the right may be acquired at any time, under a State law passed at

any time.
(2. ) That the right may be acquired at any time, but only under a State law

passed before a federal franchise is fixed.
(3.) That the right must be acquired by the " adult person " concerned before
the federal franchise is fixed.
It seems clear from the following extracts that the first of these interpretations was
not intended by Mr. Holder, the author of the clause : —

" There is a stage up to which the franchise is purely a State question, and the
regulation of the franchise is within the power and authority of the State. The moment
that ends is when the Federal Parliament passes a law fixing the franchise. What I
want is that so long as the State is free to fix the franchise, any franchise they give
shall be protected afterwards. . . . The right of the State to alter the franchise
continues, not up to the time of the formation of the Constitution, but up to the time
that the Federal Parliament frames a franchise, and I want all the rights granted up to
that time preserved in the future. [3lr. Peacock : If the Federal Legislature has legis-
lated ?] No. I want the States to have their rights with regard to the franchise unim-
paired up to the day when the federal franchise is indicated, and that whatever the fran-
chise shall be at that date it shall be preserved, and so that no person having a right up to
that date shall have it taken from him, and that this shall apply not only to South
Australia, but also to other colonies who may widen their franchise before the federal
franchise is provided." (Mr. Holder, Conv. Deb., Adel., p. 1195.)

" I want the right of the State Parliament to be protected up to the moment when
the Federal Parliament moves." (Mr. Holder, Conv. Deb., Melb., p. 1843.)

These quotations make it clear that Mr. Holder did not contemplate the first inter-
pretation, but his expressions seem to waver between the second and the third. In one
passage he speaks of persons havimj a right when the federal franchise is framed — words
which seem to contemplate the third interpretation ; whilst elsewhere he speaks of pro-
tecting the State franchise as it existed at that date — words which involve the second
interpretation. The latter seems to accord better with his general object of securing the
federal franchise to women in those States where adult suffrage might exist when the
federal franchise was framed.

Let us illustrate these distinctions. Suppose that the Federal Parliament fixes a
federal franchise, such as suggested above, for male adults ; and that afterwards Victoria
passes a lav extending the Victorian franchise to women. In South Australia the
franchise was extended to women before the federal franchise was fixed. Then the
three questions are : —

[I.) Are Victorian women entitled to vote at federal elections ?
(2.) Is a South Australian woman, who has come of age since the federal fran-
chise was fixed, entitled to vote at federal elections ; or
(3. ) Are only those South Australian women who were qualified voters at tl»e
date of the federal law entitled to vote at federal elections?
Mr. Holder's intention was that Victorian women, under those circumstances,
should not be so entitled ; though if the Victorian law had been passed before the federal
franchise, it would have Leen otherwise. But he probably intended that South Austra-

4 139.]

BOTH HOUSES OF PARLIAMENT. 487

lian women should be entitled to vote, whether actually qualified before or after the
federal law, because the franchise under which they claim was in existence before the
federal law.

That being the apparent intention, as collected from the debates, it remains to con-
sider the real intention as expressed by the section itself. " Xo adult person who has or
acquires a right " to vote at State elections " shall, while the right continues, be pre-
vented b}- any law of the Commonwealth " from voting at federal elections. The
Federal Parliament being empowered to deal with the qualification, it is not to be pre-
sumed that it wa.s intended that the State Parliament should be able, after the Federal
, Parliament had legislated, to confer by fresh legislation any further right of voting at
I federal elections. Apparently the only logical way to gather this interpretation from
I the section, is either (1) to construe "acquires" as meaning "acquires before the fram-
1 ing the federal franchise ; " or (2) to construe the word " prevented " as descriptive of a
; deprivation taking effect at the time of passing of the federal law — not a continuous depri-
1 vation enuring under the federal law. The effect of both these readings is the same ;.and
it is submitted that this is the true construction — though it may certainly be argued
that " acquires " is not expressly limited in point of time, and that a law which restricts
the franchise to certain persons " prevents " all other persons from voting so long as it
remains in force.

If this be granted, it becomes necessary to consider when a person " acquires " a

right to vote ; at the time when he — or she— individually becomes qualifiwi, or at the

time when the franchise under which he claims is enacted. Apart from the context,

there could be hardly any doubt that no person can be said to have a right to vote until

his qualification is complete. The other construction can only be argued on the assurap-

n that a law giving the franchise to a certain class of persons confers a potential or

iioate right on all persons of that class — bom or unborn— from the date of the passing

:lie law ; or else that the section refers to the right of the person, not as an individual,

" as one of a class. Either construction is very forced. A right would seem to mean a

■uplete right ; and the words " no adult person " make no allusion to a class, but single

;: the case of each individual person to be dealt with on its merits. Xo mention is

made of the law under which such person claims the right, and it would seem that, if the

te when the right was acquired is material, we must look to the date when it was

uallj' acquired by the person iu question, not the date when it was conferred by law

• lion all persons of a certain class.

Oath or affirmation of allegiance.

42. Every senator and every member of the House of
jRepresentatives shall before taking his seat make and sub-
scribe before the Governor-General, or some person authorised
|by him, an oath or affirmation^*^ of allegiance in the form set
'forth in the schedule to this Constitution.

Casada. — Everj- mem1>er of the Senate or House of Commons of Canada shall, before taking
his seat therein, subscribe before the Governor-General or some person authorized by him
. . . . the oath of allegiance contained in the fifth Schedule to this Act. — B.N.A.' Act,
1867, sec. 128.

Historical Xote.— Clause 5, Chap. I., of the Commonwealth Bill of 1891 was in
Imost identical words, and was adopted at the Adelaide session, 1897. At the Mel-
•oume session, verbal amendments were made before the first report and after the
ourth report. In the Bill as introduced into the Imperial Parliament (when the Con-
titution was placed as a schedule to the Act), the words " to this Constitution " were
Idded after " schedule " in this section.

488 COMMENTARIES ON THE CONSTITUTION. [See. 43,

§ 140. "Oath or Affirmation."

There are two forms of oath known in modern legal and official proceedings ; first
the adjuration bj^ invocation of the Deity, with uplifted hand, commonly called the
Scotch oath ; secondly, the ordinary oath on the Bible, ending with the words " So
help me God." An affirmation is a solemn assertion or denial, omitting the invocation
of the Deity.

Since the year 15,34 it has been customary for members of both Houses of Parlia-
ment to take the oath of allegiance. (Anson, Law and Custom of the Constitution,
Srded. p. 6.)

An unsworn member is only debarred from sitting or voting ; he is entitled to all
the other rights, privileges, and immunities of a member. His seat, however, is liable
to forfeiture if he fails to attend the House for a specified time. (See sections 20
and 38.)

By the English Parliamentary Oaths Act, 1866 (29 and 30 Vic. c. 19), one uniform
oath, containing no reference to Christianity, was prescribed for members of the House
of Commons. By the Promissory Oaths Act, 1868 (31 and 32 Vic. c. 72), the form of
oath which appears in the schedule to this Constitution was adopted. In 1888, an Act
was passed (51 and 52 Vic. c. 46) enabling members of the House of Commons, who
objected to be sworn on the ground that the taking of an oath was contrary to their
religious belief, to make a solemn affirmation in lieu of an oath. The affirmation pre-
scribed begins with the words "I, ^4.5., do solemnly, sincerely, and truly declare and
affirm," followed by the other words required by law, and omitting anj'^ imprecation.
This Act was passed as a result of Mr. Bradlaugh's celebrated contest with the House of
Commons. (Attorney-General v. Bradlaugh, 14 Q.B D. 667.)

Member of one House ineligible for other.

43. A member of either House of the Parliament shall
be incapable of being chosen or of sitting as a member of the
other House^".

Canada. — A Senator shall not be capable of being elected or of sitting or voting as a member of
the House of Commons.— B.N.A. Act, 1867, sec. 39.

Historical, Notk.— Clause 33, Chap. I., of the Commonwealth Bill of 1891 provides
that ' ' A Senator shall not be capable of being elected or of sitting as a member of the
House of Representatives," and the same clause was adopted at the Adelaide session,
1897. At the Sydney session, a suggestion of the Legislature of Tasmania, to omit the
clause and substitute a provision applying to both Houses, was adopted. (Conv. Deb.,
Syd. [1897], pp. 459-60, 992-3, 1011.) At the Melbourne session, verbal amendments
were made before the first report, and after tlie fourth report.

In Chap. V. of the Commonwealth Bill of 1891 there were two clauses (10 and 11)
prohibiting a member of either House of the Federal Parliament from being chosen or
sitting as a member of either House of a State Parliament, and providing that if a
member of a State Parliament were elected to the Federal Parliament, his seat in the
State Parliament should become vacant. (Conv. Deb., Syd. [1891], pp. 877-83.) In the
Adelaide draft of 1897 these clauses were omitted, and in Committee, Sir Kdward
Braddon moved their insertion. It was thought, however, that it might be left to each
State, if it thought fit, to disqualify members of the Federal Parliament from sitting in the
State Parliament, and the clauses were negatived. (Conv. Deb., Adel., 1181-2.) At the
Sydney session, a suggestion by the Legislature of Tasmania, that a member of a Stat«
Parliament should be incapable of sitting in either House of the Parliament of the Com-
monwealth, was negatived. (Conv. Deb., Syd. [1897], pp. 996-1011.)

§ Ui] BOTH HOUSES OF PARLIAMENT. 489

§ 141. '' A Member of the Other House.**

" English peers are ineligible to the House of Commons, as having a seat in the
Upper House ; and Scotch peers, as being represented there by virtue of the Act of
Union ; but Irish peers, unless elected as one of the representative peers of Ireland, may
i sit for any place in Great Britain." (May's Pari. Prac. 10th ed. p. 229.)

A provision to this eflfect, founded on the constitutional practice of the Imperial
I Parliament, is common to the Constitations of all the Australian colonies.

Disqualification • * ' .

44. Any person who —

(i.) Is under any acknowledgment of allegiance,
obedience, or adherence^*^ to a foreign power,
or is a subject or a citizen^*^ or entitled to the
rights or privileges of a subject or a citizen
of a foreign power : or
(ii.) Is attainted of treason"^, or has been convicted
and is under sentence, or subject to be
sentenced, for any offence"*' punishable under
the law of the Conamonwealth or of a State
by imprisonment for one year or longer : or
(iii.) Is an undischarged bankrupt or insolvent : or
(iv.) Holds any office of profit under the Crown"*^, or
any pension"® payable during the pleasure of
the Crown out of any of the revenues of the
Commonwealth : or
(v.) Has any direct or indirect pecuniary interest in
any agreement "^ with the Public Service of
the Commonwealth otherwise than as a
member and in common with the other
members of an incorporated company consist-
ing of more than twenty-five persons :
shall be incapable of being chosen or of sitting as a senator or
a member of the House of Representatives.

But sub-section iv. does not apply to the office of any of
the Queen's Ministers of State for the Commonwealth^^", or
of any of the Queen's Ministers for a State^^\ or to the receipt
^^P^y> balf pay, or a pension by any person as an officer or
member of the Queen's navy or army^^^, or to the receipt of
pay as an officer or member of the naval or military forces of

490 COMMENTARIES ON THE CONSTITUTION. [Sec. 44.

the Commonwealth by any person whose services are not
wholly employed by the Commonwealth.

Historical Note. — In the Commonwealth Bill of 1891, the provisions as to dis-
qualifications and vacancies were contained in clauses 46, 47, 48, and 49 of Chap. I.
Clause 46 provided for the disqualification of persons under certain disabilities ; clause

47 declared vacant the seats of members becoming .subject to such disabilities ; clause

48 provided for both disqualification and vacancy in case of contractors ; and clause 49
did the same in the case of persons holding or taking an office of profit under the Crown.
The same arrangement was followed in the Adelaide draft of 1897 ; but at the Mel-
bourne session, before the first report, the four clauses were re-arranged into two : one
disabling certain persons from being chosen or sitting as members, the other vacating
the seats of members in certain cases. The debates will be most conveniently referred
to under the heads of the several disabilities :

Foreign Allegiance. — At the Adelaide session, Mr. Gordon suggested the insertion
of words removing the disability of a person who has taken an oath of foreign allegiance,
if he since become a naturalized British subject. No amendment was moved. (Conv.
Deb., Adel., p. 736.)

Attainder or Conviction. — In the Commonwealth Bill of 1891, the provision was that
a person "attainted of treason, or convicted of felony or any infamous crime " should
be incapable " until the disability is removed by . . . the expiration or remission of
the sentence, or a pardon, or release, or otherwise." In Committee, Mr. Wrixon
objected to the express provision that an ex-convict might be a member of Parliament,
and proposed to make the disqualification permanent ; but this was negatived by 27
votes to 9. (Conv. Deb., Syd. [1891], pp. ei55-9.) At the Sydney session, 1897, Mr.
Barton mentioned a suggestion by Sir Samuel Griffith to substitute more precise tenns
for "felony or other infamous crime." (Conv. Deb., Syd. [1897], pp. 1020-2.) Accord-
ingly at the Melbourne session, before the first report and after the fourth report, the
provision was altered to its present form. (See Conv. Deb., Melb., p. 2445.)

Bankruptcy or Insolvency. — At the Sydney session, 1897, a suggestion by the Legis-
lative Assembly of New South Wales, to omit the disqualification of " an undischarged
bankrupt or insolvent or a public defaulter " was supported by Mr. Carruthers, but was
negatived. (Conv. Deb., Syd. [1897], pp. 1015-9.) The same omission was again moved
by Mr. Carruthers at the Melbourne session. It was argued on the one hand that bank-
ruptcy did not necessarily involve moral delinquency ; and on the other that, for the
public security, a bankrupt ought to be disqualified until the court has pronounced upon
his conduct and given him a discharge. The amendment was again negatived. (Conv.
Deb., Melb., pp. 1931-41.)

Office of Profit.— Conv. Deb., Syd. (1891), pp. 660-2,898; Conv. Deb. , Adel. , pp.
754-6 ; Conv. Deb., Syd. (1897), pp. 1028-9, At the Melbourne session. Sir John
Forrest moved to insert an exemption in favour of "any of the Queen's Ministers iu a
State," which was agreed to. (Conv. Deb., Melb., pp. 1941-2. See ib. p. 2448.)

At the Adelaide session, Sir Geo. Turner suggested the insertion of a provision
similar to section 6 of the Constitution of Victoria, making it penal for any person,
while he is a member of Parliament, or within six months after ceasing to be a member,
to accept any office of profit under the Crown. After debate a proposal was made by
Sir William Zeal, to the effect that until the Parliament otherwise provides, no person
while a member or within six months of ceasing to be a member sliould hold or take any
oflBce which would disqualify a person from being chosen or sitting as a member. This
was carried by 19 votes to 18. (Conv. Deb., Adel., pp. 739-53, 1198.) At the Sydney
session, a suggestion by the Legislative Council of New South Wale.s, that this provision
be omitted, was agreed to by 19 votes to 10. (Conv. Deb., Syd. [1897], pp. 1029-:34,)

§4 U2.U4.] BOTH HOUSES OF PARLIAMENT. 491

Agreement xcith the Public Service. — Conv. Deb., Adel., pp. 736-7 ; Conv. Deb., Syd.
<1897). pp. 1022-8.

General. — At the Sj'dney session, 1897, Mr. Glynn, in accordance with one of three
alternative suggestions made by Sir Samuel Griffith, proposed to insert at the beginning
of the clause the words " until the Parliament otherwise provides." This was negatived*
by 26 votes to 8. (Conv. Deb., Syd. [1897], pp. 1012-5.)

§ 142. "Disqualification."

Section 44 enumerates different kinds of status which, while they continue, render
*' any person " incapable of being chosen or of sitting as a senator or a member. That is
to say, the continuance of the disqualifying status makes a " person " incapable of
becoming or being a senator or a member.
I If a disqualified person is declared duly elected, he is nevertheless not chosen within

I the meaning of the Constitution, and accordingly is not a senator or a member. He is
t forbidden to sit as a senator or a member, and is liable to a penalty if he does so sit.
j This section does not, like the next section, declare that '* his place shall become
i vacant," because he is incapable of having a place. The proper course for the House,
; upon proof of the disqualification, is either (1) to declare the candidate next on the poll
1 dulv elected, or (2) to declare that the seat is vacant — not that "his place is become
I vacant " — and require another election.
i

! § 143. '' Allegiance, Obedience, or Adherence."

Allegiance is the lawful obedience which a subject is bound to render to his

jsovereigu. Allegiance is of three kinds: natural, acquired, or local. (1) Natural

1 allegiance is that which every subject bom from his birth owes to his sovereign. He is

'said to be a natural liegeman, as the sovereign is said to be his natural liege lord.

(2) Allegiance is acquired where one is naturalized, or made a denizen. (3) The

allegiance owed by every resident in the British dominions for the protection he enjoys is

called local. It is customarj-, however, at the present day to restrict the use of the

word to the first and second of these — the bond which attaches a subject to his

sovereign— though some authors still speak of " local allegiance " as due by both British

subjects and aliens alike, while within the dominions of the Crown, to distinguish it

:rom the allegiance due by British subjects on foreign soil, and entitling them also to

protection there. Under British law, until the Naturalization Act of 1870, no natural-

X)m British subject could divest himself of his allegiance ; but since that Act he may

nake a declaration of alienage, and thereafter he ceases to be a British subject.

aliens, on naturalization, are required to take an oath of allegiance (see Naturalization

\.ct, 1870, 33 and 34 Vic. c. 14, s. 9 ; Naturalization Oaths Act, 1870, 33 and 34 Vic.

:. 102 ; and Regulations issued by the Home Office in exercise of the powers contained

In the Naturalization Acts, 1870. Encyclopedia of the Laws of England, vol. i. p. 225.)

§ 144. "A Subject or a Citizen."

A subject is one who, from his birth or oath, owes lawful obedience or allegiance to

- liege lord or sovereign. " Citizen " is the term usually employed, under a republican

111 of government, as the equivalent of "subject" in monarchies of feudal origin.

jEncy. of the Laws of Eng., iii. p. 35. ) See Note § 463 infra, " Subject of the Queen."

1 " While the active duties of the citizen of a Commonwealth can hardly be dis-
Wged lieyond the territories of that Commonwealth, the duties of the subject of a
ing, the subject, that is, of a personal master, are as binding on one part of the earth's
irface as on another. I have just used words which go to the root of the matter. I
ave used words ' citizen ' and ' subject.' The difference between the two conceptions
in nowhere put on a more living shape than in the use of those two names. The Greek
ould have deemed himself degraded by the name of 'subject.' To him the word
lat best translates it expressed the position of men who, either in their own persons or

492 COMMENTARIES ON THE CONSTITUTION. [Sec.M.

in the person of the cities to which they belonged, were shorn of the common rights of
every citj% of every citizen. We use the word ' subject' daily without any feeling of
being lowered by it. It has become so familiar that it is assumed as the natural phraae
to express membership of a political body, and it is often used when it is quite out of
place. I once read, and that in a formal document, of a 'Swiss subject,' and I had the.
pleasure of explaining that there had been no subjects, no Unterthanen, in Switzerland
since 1798. And the question comes, What are we to say instead ? ' Swiss citizen,' 'French
citizen,' ' citizen of the United States,' have this awkwardness about them, that the
community whose membership they express is not a city. The very awkwardness pointa
to the main difference between the world of old Hellas and the world of modern Europe,
the difference in scale. Be it kingdom or be it commonwealtli, the State with which
modern politics have to deal is not a city but something vastly greater." (Freeman,
Greater Greece and Greater Britain, pp. 23-24.)

§ 145. " Attainted of Treason."

In 1870 O'Donovan Rossa, a convict in prison under sentence of penal servitude for
life for felony under the Treason-Felony Act, 11 and 12 Vic. c. 12, was returned aa
member of the House of Commons for the County of Tipperary. It was contended that
as he was not "attainted of treason" there was no disqualification, but the House
determined that " John O'Donovan Rossa having been adjudged guilty of felony and
sentenced to penal servitude for life, and being now imprisoned under such sentence, he
has become and still continues incapable of being elected or returned as a member of the
House," and a new writ was issued.

§ 146. "Or has been Convicted, and is Under Sentence

for any Offence."

An ofiFence is some act or omission which is triable and punishable, either on
indictment or information, in a superior court before a jury, such as a felony or
misdemeanor, or summarily before Justices, according to the direction of the law
creating the offence. A person convicted of an offence of any description against the
law of the Commonwealth or against the law of a State, whether it be felony or
misdemeanor, or an offence punishable on summary conviction, and undergoing sentence
of imprisonment for the term of one year or more, is disqualified for membership until
he has served his sentence.

In England persons convicted of treason or felony, and sentenced to imprisonment
with hard labour, or for a term exceeding twelve months, are incapable of being elected
members of the House of Commons or of sitting and voting therein until they have
served their sentence. (33 and 34 Vic. c. 23, sec. 2.) Conviction for misdemeanor or
offences punishable summarily does rot disqualify for membership of the House of
Commons. The House, however, has jurisdiction to expel any member guilty of M
infamous or disgraceful offence, even though it does not amount to a felony followed by
a conviction and sentence as above defined.

In 1875 John Mitchel was returned to the House of Commons for the County of
Tipperarj-, without a contest. It was well known that he was an escaped prisoner and
had not completed the term of transportation for which he had been sentenced. A new
writ was accordingly issued, and Mitchel was again retui-ned to the House, after a
contest. The defeated candidate filed a petition against Mitchel's return and praying
for the seat. It was referred to the Court of Common Pleas in Ireland, and the
petitioner, who had given due notice of the disqualification, was adjudged entitled to
the seat. (May, 10th ed. pp. 33 and 619.)

§ 147. " Office of Profit under the Crown."

A person holding an office of profit under the Crown is incapable of being chosen m
of sitting as a senator- or as a member of the House of Representatives. This general
disqualification would apply to persons holding office under the Crown in any part of the
British dominions, with the exceptions mentioned at the end of this section, viz., (1) ^' '

^^,^ 147-151.] BOTH HOUSES OF PARLIAMENT. 493

Queen's Ministers of State for the Commonwealth ; (2) the Queen's Ministers for a
State ; (3) officers or members of the Queen's army or navy in receipt of pay, half-pay,
or a pension ; and (4) to officers or members of the naval or military forces of the Com-
monwealth whose services are not whoUj' employed by the Commonwealth.

The office of President of the Senate, or Speaker of the House of Representatives,
with a salary annexed thereto, would not be an office of profit under the Crown. TRose
dignitaries are appointed by the respective Houses, not by the Crown ; they are not
servants of the Crown. (See Conv. Deb., Melb., p. 2448.)

" In England the holders of new offices under the Crown created since 2dth October,

1705, are incapable of being elected or of sitting and voting (6 Anne, c. 41, s. 24i unle^is

a statutory exception has been made in favour of such new offices. By sec. 2-5, members

I of the House of Commons accepting from the Crown old offices, that is to say, offices

created before 1705, vacate their seats, but may be re-elected." (Kncycl. Laws of

I England, ix. p. 399.)

i " No senator or representative shall, during the time for which he was elected, be

j appointed to any civil office under the authority of the United States, which shall have
j been created, or the emoluments whereof shall have been increased during such time ;
I and no person holding any office under the United States shall be a member of either
House during his continuance in office." (Const, of U.S. Art. I. sec vi. subs. 2.)

§ 148. "Pension."

In England, persons in receipt of pensions from the Crown, during pleasure, are
disqualified by 6 Anne c. 41, sec. 24 ; but under 32 and 33 Vic. c. 15 and c. 43, this does
|Qot apply to pensioners in the diplomatic and civil services. Persons disqualified under
[this Constitution are those in receipt of pensions payable out of the revenues of the
Commonwealth during the pleasure of the Crown. Pensioners paid out of the Imperial

evenue, or out of the revenues of States, are subject to no disability under this

ection.

§ 149. " Interest in any Agreement.**

This is a disability arising from any contract or agreement for valuable considera-
. which any person may have entered into to supply any goods or perform any
ice to the Government of the Commonwealth. In England, Government contractors
iisqualified under 22 Geo. III. c. 45, sec. 1. The reason for the disqualification of

Irovernment contractors is that they are supposed to be liable to the influence of their

jmployers.

150. " The Queen's Ministers of State for the Common-
wealth."

The Queen's Ministers of State for the Commonwealth, appointed by the Grovemor-

Icueral under sec. 64, are exempt from the general prohibition directed by sub-sec. iv.
;ainst office-holders and place-holders occupying seats in the Federal Parliament. It
one of the fundamental principles of the existing system of responsible government,
lat Ministers of the Crown should be capable of being members of Parliament, and that
ey should not hold office for any lengthened period, unless thej' are members; the
'ason being that they are responsible to Parliament for their political conduct, and
ild therefore be present in one of the Chambers in order to answer questions respect-
the administration of their departments, to hear Parliamentary criticism, and, if
icessary, to defend themselves when attacked.

§ 151. "The Queen's Ministers for a State."

The members of a State legislature are not debarred from becoming members of the
1 deral Parliament (see Historical Xote to sec. 43), and it was thought equally desirable
i it the members of a State Government should not be so debarred.

494 COMMENTARIES ON THE CONSTITUTION. [Sec. 46.

§ 152. " Officer or Member of the Queen's Navy or Army."

Under this exception to the rule for the exclusion of place-holders, a person in the
receipt of pay, half-pay, or a pension, as an officer or member of the Imperial Navy, or
of the Imperial Army, is qualified to be a member of the Federal Parliament. In Eng-
land, the statute 6 Anne c. 41, s. 27, contains an exception in favour of officers in the
army and navy accepting a new commission.

Vacancy on happening of disqualification.

45. If a senator or member^^^ of the House of Repre-
sentatives—

(i.) Becomes subject to any of the disabilities men-
tioned in the last preceding section : or
(ii.) Takes the benefit, whether by assignment, com-
position, or otherwise, of any law relating to
bankrupt or insolvent debtors : or
(iii.) Directly or indirectly takes or agrees to take
any fee or honorarium for services rendered
to the Commonwealth, or for services rendered
in the Parliament to any person or State :
his place shall thereupon become vacant.

Historical Note. — For reference to the corresponding provisions of the Common-
wealth Bill of 1891, and the Adelaide draft of 1897, see Historical Note, sec. 44.

The provision as to fees or honorariums was first suggested by Mr. Carruthers at
the Adelaide session, 1897, and ultimatel}' agreed to. (Con v. Deb., Adel., pp 737-8,
1034-44.) At the Sydney session, a suggestion of the Legislative Council of New South
Wales, to omit the paragraph, was negatived. (Conv. Deb., Syd. [1897], p 1028.) At
the Melbourne session, after the second report, Mr. Reid moved to insert " or for work
done or services rendered in Parliament for or on behalf of any person or corporation.
This was agreed to. (Conv. Deb., Melb., pp. 1944-7.) After the fourth report, verbal
amendments were made. (See Conv. Deb., Melb., pp. 2448-9.)

§ 153. "If a Senator or Member."

The preceding section enumerates different kinds of status, which, M'hile they con-
tinue, disqualify "any person" from becoming or being a senator or a member; tbi»
section enumerates different acts or events which, if they are done by or happen to a
senator or a member, disqualify him from continuing to be a senator or a member. Tho
preceding section refers to the continuing existence of a disqualifying status ; this sec-
tion to the happening of a .^isaualifying^ifiiit^ This section therefore deals only wito
senators or members who were qualified at the time of their election, but who beconif
disqualified afterwards.

The disqualifying event mentioned in sub-sec. i. is the acquirement of any of the
kinds of status enumerated in the preceding section. If such status existed at the time
of the election, the person affected is not a senator or a member ; he is dealt with under
the preceding section. But if, after becoming a .senator or a member, he " become*
subject to" the disability, eoinntanti his seat is vacated under this section.

The disqualifying acts mentioned in sub-sees. ii. and iii. are acts which do not in
volve a continuing status, but which, if done by a senator or a member, vacate his seat.

§ 154.] BOTH HOUSES OF PARLT ANIENT. 495

I'enalty for sitting when disqualified.

4G. Until the Parliament otherwise provides, any person
declared by this Constitution to be incapable of sitting as a
senator or as a member of the House of Representatives
shall, for every day on which he so sits, be liable to pay the
sum of one hundred pounds to any person who sues for it^^ in
any court of competent jurisdiction.

Historical Note. — In the Conunonwealth Bill of 1891 the clause was substantially
the same, except that the words " Until the Parliament otherwise provides " were
absent. At the Adelaide session, 1897, the clause was introduced in nearly the same
words. In Committee, on Mr. Barton's motion, the words " or disqualified or prohibited
from holding any office" were inserted after " House of Representatives;" and the
words " or accepts or holds such office " were inserted before " be liable." (Conv. Deb.,
Adel., pp. 1193-9.) At the Sydney session. Dr. Quick called attention to the pro\-ision
for a penalty, which had been decided to be unnecessary in respect of the prohibition
against plural voting ; and Mr. Barton agreed to bring before the Drafting Committee
the question of its omission. (Conv. Deb. , Syd. , 1897, p. 1034. ) Subsequently as a
drafting amendment, the words pre\-iously inserted as to accepting or holding office were
omitted, and the words " until the Parliament otherwise provides " were inserted. At
the Melbourne sessiou, verbal amendments were made before the first report and after
the fourth report.

§ 154. " To any Person who Sues for it."

A common informer is authorized to sue in a court of competent jurisdiction to
lecover the penalty for sitting and voting as a member of Parliament when disqualified.
I The Federal Parliament has power under sec. 77 to enable this penalty to be sued for in
>tate court.

Disputed elections.

47. Until the Parliament otherwise provides, any ques-
ion respecting the qualification of a senator or of a member
)f the House of Representatives, or respecting a vacancy in
'ither House of the Parliament, and any question of a dis-
'uted election^^^ to either House, shall be determined by the
jiouse in which the question arises.

UsiTKD Statbs. — Each House shall be the judge of the elections, returns, and qualifications of
its own members. — Const. Art. I. sec 5, sub-sec. 1.

Caxada.— L'ntil the Parliament of Canada otherwise provides, all laws in force in the several
Pro\inees at the Union relative to . . . the trial of controverted elections and pro-
ceedings incident thereto, the vacating of seats of members . . . shall respectively
apply to elections of members to ser^'e in the House of Commons for the same several
Pro\inces.— B.X.A. Act, sec. 41.

^ Historical Note.— The Commonwealth Bill of 1891, clause 21, Chap. I., provided
lat " If any question arises respecting the qualification of a senator or a vacancy in the
■nate, the same shall be determined by the Senate." Clause 44 made a similar
j\ision in the case of the House of Representatives.

At the Adelaide session, 1897, the provision was that " Until the Parliament other-
re provides, anj* question respecting the qualification of a member, or a vacancy in
t|- Senate, or a disputed return, shall be determined by the Senate ; " and similarly for

496 COMMENTARIES ON THE CONSTITUTION. [Sec. 47.

the House of Representatives. In Committee, Sir Edward Braddon proposed to sub-
stitute "High Court" for "Senate." Mr. Wise, however, argued that questions of
qualifications and vacancies ought to be decided by the House, though disputed returns
ought to be decided by the High Court. Sir Edward Braddon withdrew his amendment,
and on Mr. Wise's motion the words " or a disputed return " were omitted, with a view
to dealing with the matter in another clause. (Conv. Deb., Adel., pp. 680-2.) Subse-
quently Mr. Barton proposed a new clause (48 a) : —

"Until the Parliament otherwise provides, all questions of disputed elections
arising in the Senate or the House of Representatives shall be determined by a federal
court or a court exercising federal jurisdiction." This was agreed to. (Conv. Deb.,
Adel., p. 1150.)

At the Sydney session, 1897, a suggestion by the Legislature of Tasmania, to omit
the new clause and restore "disputed elections" to the "qualifications and vacancies"
clauses, was considered. It was pointed out that there might be a difficulty as to the
first election, before the Parliament could make suitable provision. The whole question
was ultimately left to the Drafting Committee. (Conv. Deb., Syd., 1897, pp. 464-6,
99.3, 10.34-5.) The Drafting Committee struck out all three clauses and substituted a
clause substantially in the form of this section. At the Melbourne session, drafting
amendments were made before the first report and after the fourth report.

§ 155. " Qualification . . Vacancy . . a Disputed

Election."

This section provides that, until legislation on the subject by the Federal Parliament
establishing a different procedure, each chamber shall have exclusive jurisdiction to
determine all questions which may arise respecting (1) the qualification of its members,
(2) a vacancy which has arisen or which may be alleged to have arisen in its membership,
and (3) a disputed election in which it is concerned. Such legislation may assume the
form of transferring the jurisdiction to the Federal Courts or to the State Courts, to
hear and determine all controversies of the kind.

" In England before the year 1770, controverted elections were tried and determined
by the whole House of Commons, as mere party questions, upon which the strength of
contending factions might be tested. In order to prevent so notorious a perversion of
justice, the House consented to submit the exercise of its privilege to a tribunal consti-
tuted by law, which, though composed of its own members, should be appointed so as
to secure impartiality, and the administration of justice according to the laws of the
land, and under the sanction of oaths. The principle of the Grenville Act, and of others
which were passed at different times since 1770, was the selection by lot of committees
for the trial of election petitions. Partialitj' and incompetence were, however, generaUv
complained of in the constitution of committees appointed in this manner ; and, in 1839,
an Act was passed establishing a new system, upon different principles, increasing the
responsibility of individual members, and leaving but little to the operation of chance.
This principle was maintained, with partial alterations of the means bj' wliich it was
carried out, until 1868, when the jurisdiction of the house, in the trial of controvei-t«d
elections, was transferred by statute to the courts of law." (May's Pari. Prac. 10th ed.
p. 613.)

"By the Election Petitions and Corrupt Practices at Elections Act, 1868, the
Parliamentary Elections and Corrupt Practices Act, 1879, and the statute 44 and 45
Vic. c. 68, the trial of controverted elections is confided to two judges, selected, a**
regards England, from the Queen's Bench Division of the High Court of Justice ; a.**
regards Ireland, from the Court of Common Pleas at Dublin ; and as regards Scotlami,
from the Court of Session. Petitions complaining of undue elections and returns ar>'
presented to these courts instead of to the House of Commons, as formerly,
twenty-one days after the returns to which they relate, and are tried by two ju
those courts, within the county or borough concerned. The house has no cogni/
these proceedings until their termination : when the judge.s certify their detenu li
in writing, to the Speaker, which is final to all intents and purposes. The juiK
also to report whether any corrupt practices have been committed with the kiu'i
and consent of any candidate ; the names of any persons proved guilty of corru|i-
tices ; and whether corrupt practices have extensively prevailed at the election. ' '"'.*
may also make a special report as to other matters which, in their judgment, ought to

4 1.55] BOTH HOUSES OF PARLIAMENT. 497

he submitted to the house. Provision is also made for the trial of a special case, when
requirefl, by the Court itself, which is to certify its determination to the Speaker. By
sec. 5 of the Corrupt and Illegal Practices Prevention Act, 18S3 (46 and 47 Vic, c. 51),
the election court is directed also to report to the Speaker whether candidates at
elections have been guilty by their agents of corrupt practices. The judges are also to
report the withdrawal of an election petition to the Speaker, with their opinion whether
the withdrawal was the result of anj- corrupt arrangement. All such certiticates and
reports are communicated to the House by the Speaker, and are treated like the reports
of election committees under the former system. They are entered in the journals ; and
orders are made for carrving the determinations of the judges into execution." [Id.
p. 616.)

In 1872 the Legislature of the Province of Quebec passed an Act transferring to the
Supreme Court of the Province the decision of controverted election cases which was
previously vested in its own hands. Further and later provision was made by an
amending act passed in 1875, by the 90th section of which it was declared that the
I judgment of the Supreme Court sitting in review *' should not be susc-eptible of
appeal. "

In 1874 the Canadian Parliament transferred the jurisdiction in the trial and decision
I of federal election petitions to the ordinary courts of the Provinces, subject to appeal to
i the Supreme Court of Canada. Amending ajid consolidating acts, dealing with same
I subject, were passed in 1886 and 1887. The procedure iu the prosecution of such petitions
is as follows : a petition is to l)e presented to the ProNincial Court, which is to have the
I same powers as if such petition were an ordinarj' cause within its jurisdiction. Short
periods of time are prescribed for giving notice of the petition, for taking preliminary
objections to it, and for answering it, if those objections are overruled. Every petition
is to be tried by one of the judges of the court, without a jurj'. The trial of every
petition is to be commenced within six months of its presentation, and to be proceeded
with from day to day until it is over. The court may enlarge the time for commence-
ment of trial, or the period limited for taking any steps or proceedings. The judge may
prder a special case to be statetl for the decision of any question, but it is " as far as
loossible " to be heard before that judge. An appeal from the judge's decision may be
le to the Supreme Court of Canada within eight days. If there is no such appeal,
judge is, within four additional days, to certify his decision to the Speaker of the
douse of Commons, who is to take action thereupon "at the earliest practicable
noment," or "without delay." If there is an appeal, the Supreme Court is to decide,
ts registrar is to certify the decision, and the Speaker to take action upon it. (Wheeler,
:.C. p. 315.)

The validity of the Provincial and Federal Acts was affirmed by the Privy Council
n Thelierge v. Laudry (1876), 2 App. Ca. 102 ; Valin r. Langlois(1879), 5 App. Ca. 115,
nd Kennedy v. Purcell (1888), 14 Sup. Ct. (Canada) Rep. 4o3 ; 59 L.T. 279 P.C, On
he question whether an appeal should be allowed to the Queen in Council, in contro-
■erted election cases, the following extracts from judgments of the Privy Council may

•iterl : —

"Now the subject-matter, as has been said, of the legislation is extremely peculiar.

jncerns the rights and the privileges of the electors, and of the legislative assembly to

> eh they elect members. Those rights and privileges have alwaj's. in every colony,

j llowing the example of the mother country, been jealously maintained and guarded by

lie legislative assembh-. Above all, they have been looked upon as rights and privileges

' ich pertain to the legislative assembly, in complete independence of the Crown, so

^s they properly exist. And it woiUd be a result somewhat surprising, and hardly

onsonance with the general scheme of the legislation, if, with regard to rights and

' ileges of this kind, it were to be found that in the last resort the determination of

111 no longer belonged to the legislative assembly, no longer belonged to the superior

urt which the legislative assembly had put in its place, but belonged to the Crown in

>oncil, with the advice of the advisers of the Crown at home, to be determined without

ference either to the judgment of the legislative as.sembly, or of that court which

e legislative assembly had substituted in its place. These are considerations which

ui their lordships not in any way to infringe, which they would be far from doing,

j>on the general principle that the prerogative of the Crown, once established, cannot

498 COMMENTARIES ON THE CONSTITUTION. [Sec. 48.

be taken away, except bj' express words ; but to consider with anxiety whether in the
scheme of this legislation it ever was intended to create a tribunal which should have, aft
one of its incidents, the liability to be reviewed by the Crown under its prerogative. In
other words, their lordships have to consider, not whether there are express wordft
here taking away prerogative, but whether there ever was the intention of creating thi»
tribunal with the ordinary incident of an appeal to the Crown. In the opinion of their
lordships, adverting to these considerations, the 90th section, which says that the jurlg-
ment shall not be susceptible of appeal, is an enactment which indicates clearly the
intention of the legislature under this Act, — an Act which is assented to on the part of
the Crown, and to which the Crown, therefore, is a party, — to create this tribunal for the
purpose of trying election petitions in a manner which should make its decision final to
all purposes, and should not annex it to the incident of its jiulgment being reviewed by
the Crown under its prerogative. In the opinion, therefore, of their lordships, there is
not in this case, adverting to the peculiar character of the enactment, the prerogative
right to admit an appeal, and therefore the petition must be refused." {Per Lord Cairna
in Theberge v Laudry, 2 App. Ca. 107-8.)

" Suppose we recommend Her Majesty to reverse the judgment, how would that
decree be carried into execution? It would go to the House of Commons and be
reported to the Speaker. The Speaker could not act on his own authority, and could
only act hx order of the House : suppose the House to say, ' Her Majesty has no pre-
rogative to do this, and v e refuse to carry it out.' Then there would be an immediate
conflict between the House of Commons of the Dominion and Her Majesty. It would not
be a very prudent thing for us to advise Her Majesty to reverse a judgment unless we
can see our way to having it carried into execution when Her Majesty ordered it Sup-
pose the House of Commons, on the report of the Supreme Court that both parties had
been guilty of bribery, ordered a new writ, but Her Majesty orders that writ to be
recalled, or upset the election which had taken place iinder it. It appears to me there
is no mode of carrying out the decree ; and we would not advise Her Majesty to reverse
a decree unless we saw a mode of carrying the decree into execiition." (Per Sir Barnes
Peacock, in Kennedy r. Purcell, 59 L.T. 279 P. C, on a motion for leave to appeal;
Wheeler, C.C. 314.)

Allowance to members.

48. Until the Parliament otherwise provides, each
senator and each member of the House of Representatives
shall receive an allowance^*^ of four hundred pounds a year,
to be reckoned from the day on which he takes his seat.

-The senators and representatives shall reoeive a compensation for meir
be ascertained by law, and paid out of the Treasury of the United States.—

Unitkd States. -
services, to
Const., Art. I., sec. 6, sub-s. f.

Historical Note. — Clause 45, Chap. I. of the Commonwealth Bill of 1891 wa««»
follows : —

" Each member of the Senate and House of Representatives shall receive an annual
allowance for his services, the amount of which shall be fixed by the Parliament from
time to time. Until other provision is mnde in that behalf by the Parliament, the
amount of such annual allowance shall be Five Hundred Pounds."

In Committee, Mr. Wrixon suggested that "allowance for his services" was a
misdescription ; it was merely an allowance for reimbursement of expenses. Mr.
Marmion moved the omission of the words " for his services," but this was negativeo.
(Conv. Deb., Syd. [1891], pp. 653-4.)

At the Adelaide session, 1897, the clause as introduced was to the .same effect,
except that the sum was £400. In Committee, Mr. Gordon moved to substitute £500,
but this was negatived by 26 votes to 9. (Conv. Deb., Adel., pp. 1031-4.) At the
Sydney session, a suggestion by the Legislative Council of South Australia and tlie
Legislature of Tasmania, to reduce the allowance to £300, was negatived. A suggeatioB
by the Legislative Assembly of Victoria, to omit "on which he takes his seat," M"
insert " of His election," was negatived. A new clause suggested by the Legislatne
Council of South Australia, to prevent a Minister from drawing both a salary and l>i»

§ 156] BOTH HOUSES OF PARLIAMENT. 499

allowance as a member, was negatived, as being a matter for federal legislation. (Conv.
Deb., Syd. [1897], pp. 993-t5.) At the Melboame session, drafting amendments were
made before the first report and after the fourth report.

§ 156. " Allowance."

The system known as payment of members has found a place in the Constitution
Each senator and each member of the House of Representatives is entitled to receive an
allowance ot £400 a year, to be reckoned from the day on which he takes his seat. But
neither the principle nor the amount of payment are permanent constitutional provisions.
Without an amendment of the Constitution, the Federal Parliament may at any time
either abolish payment of members or reduce or increase the allowance which each
member is to receive, or alter the method of apportioning the allowance, providing that
each member shall be paid according to the distance which he travels or the attendance
which he gives at the sittings of his House.

Payment of members of Parliament is not a modem political innovation. It was
known and practised in the earl}- history of parliamentary representation in EnglaniL
(See Heam's Gov. of Eng. p. 526, cit«i infra.) It was adopted in the Federal
Constitution of the United States. (Art I. sec. 6.) It has been the subject of prolonged
controversy in British colonies during the last forty years, and it is now generally
regarded as an essential condition of democratic government, especially in young
communities. It is in force in most of the respon-sible government colonies, although in
several instances it was not carried without bitter opposition and memorable contests.

In the Dominion of Canada each member of the Senate and of the House of Commons

is entitled to an allowance of ten dollars per day for his attendance at Parliament during

a session not exceeding thirty days in duration. For a session lasting longer than thirty

days each member is paid $1000. In addition to this remuneration, a member is allowed

ten cents per mile expenses in travelling from his division or electorate to the seat of

government, and return once during the session. If a member fail to attend the sittings

of his House, and his absence is not caused by illness, eight dollars for each day on

which he does not attend are deducted from his allowance. Members of the Legislative

Assembly of New South Wales (elected) are paid £300 {>er year, in addition to which

they are allowed to travel free on the government railways and tramways. Members of

the Legislative Council (nominated by the Crown) are not paid, but they have similar

privileges on the railways. Members of the two Houses of the Victorian Parliament

(elected) have respectively remuneration and railway pri\nleges similar to those of New

South Wales. Members of both Houses (elected) of the South Australian Parliament

are paid at the rate of £200 per year, and in addition enjo^* railway facilities. In New

2^1and the members of the Legislative Council (nominated by the Crown) are paid at

the rate of £150 per year, whilst members of the House of Representatives (elected)

receive £240 per year. Members of the Legislative Asserabh' of Queensland (elected)

are entitled to £30() per year, and in addition an allowance of Is. 6d. per mile on

vpenses for travelling by land, and the actual cost of travelling by sea for one journey

1 session from their electorates to the place where the Parliament meets and return.

.^[aeensland Legislative Councillors (nominated by the Crown) receive no remuneration.

Irhe membei-s of lx)th Houses of the Parliament of Tasmania receive £100 per year, with

e passes over the government railway lines. In the Unitetl States of America the

.lary of a senator, representative or territorial delegate in Ck)ngress is fixed at 35000

)er year with travelling expenses at the rate of 20 cents per mile for one journey per

«88iou, from the member's State or electorate to the seat of government and return.

" Another change that time has wrought in the Commons of the Plantagenets relates
o the pajTiient of members for their services. This practice, like that of resiancy, was
oeval with representation. The writs 'h ezpen-sut Itvandis date from the i;eign of Henrj-
he Third. In subsequent reigns they were issued with as much regularity as the writs
■ summons. The payment was levied on the several constituencies ; and was calculated

500 COMMENTARIES ON THE CONSTITUTION. [Sec. 49.

for the actual period of attendance, and for the time spent in going or returning, accord-
ing to the distance in each case of the representative from tlie place at which Parliament
met. At first the rate of wages varied according to the rank of the representative or
the dearness of the season or other considerations. A Knight by order was paid more
than an Esquire, and the latter more than a citizen or burgess. Finally the rate settled
down at four shillings a day for Knights of the shire, and half that sum for representa-
tives of towns. Few questions of those times excited greater interest than this payment
of members." (Hearn's Gov. of Engl, p 526.)

"The reign of Elizabeth may probaljlj' be taken as the period at which honorary
service in Parliament became general. The importance of the House of Commons had
greatly increased. The wealth of the country had aLso increased. Four shillings and
two shillings were much less important sums to the subjects of the Tudors than they
had been to the victors of Cressj' or of Agincourt. The remuneration in honoiu* thus
became a sufficient inducement to serve, without the inducement in wages. It is of
course impossible to fix a precise date for a change which was probably gradual."
(Id. p. 529.)

" But although the right has long been in abeyance, the legal obligation of con-
stituencies has never been removed. In the Long Parliament of Charles the Second the
arrears due to members must have amounted to a considerable sum. Accordingly when
one of its members, Sir Thomas Shaw, sued out his writ de exptims against the town of
Colchester, a general alarm was excited ; and a bill was introduced to exonerate the
electors from tiie paj'ment of wages to any member of tliat Parliament. This measure,
however, did not become law ; and the old common law right still remains. The last
instance in which it was exercised appears to have been in 1681, when, in the fourth
Parliament of King Charles, John King sued out his writ against the burgesses of
Harwich It thus appears that by our ancient constitutional usage no persons were
bound to serve in Parliament gratuitously ; that the pajnient of members was a charge
upon the communities which those members were chosen to represent ; that this pay-
ment was originally intended merelj'^ as an indemnity and not as a source of gain ; and
that the disuse of this practice is due to the influence of social changes, and not to any
formal alteration of the law." (Id. p. 5.30 )

By 8. 2 of the New South Wales Parliamentary Representatives' Allowance Act,
1889, •' ever}' member of the Legislative Assembly now serving or hereafter to .serve
therein" was to receive an allowance, which was to be payable " to every such member
of this present Legislative Assembly now serving . . . and to every sucli meml)cr
hereafter elected, from the time of his taking his seat, and in every case until he shall
resign, or his seat be vacated, or until Parliament shall be dissolved, or shall expire by
effluxion of time": — Held, that for the purposes of the Act the Legislative Assembly
must be regarded as a permanent body, and that the allowance was intended to be made
to members of future Assemblies as well as of that which existed when the Act waa
passed. (Att.-Gen. New South Wales v. Rennie, 1896, App. Ca, 376.)

Privileges, &c., of Houses.

49. The powers, privileges, and immunities^" of the
Senate and of the House of Representatives, and of the
members and the committees of each House, shall be such as
are declared by the Parliament^^^ and until declared shall be
those of the Commons House of Parliament of the United
Kingdom, and of its members and committees, at the
establishment of the Commonwealth.

Ca.nada.— The privileges, immunities, and powers to be held, enjoyed, and exercised
Senate and by the House of Commons, and by the members thereof respectively, -
such as are from time to tmie defined by Act of the Parliament of Canada, but so ". '
same shall never exceed those at the passing of this Act held, enjoyed, and exercisnl l^v
the Commons House of Parliament of the United Kingdom of Great Britain and Irdanu.
and by the members thereof.— B.N. A. Act, 1807, sec. 18.

Historical Note.— Clause 8, Chap. I. of the Commonwealth Bill of 1891 was to

the same effect. In Committee, several members thought that the word " powers'' was

too large ; and Mr. Wrixon suggested that it should be declared that the powers sliould

§ 157.] BOTH HOUSES OF PARLIAMENT. 501

oot exceed those of the House of Commons. A proposal by Mr. Adj-e Douglas, to omit
"powers," was negatived. (Conv. Deb., Syd. [1891], pp. 585-7.)

At the Adelaide session, 1897, the clause was introduced in substantially the same
form, and in Committee some verbal amendments were made. (Conv. Deb., Adel., pp.
635, 1189.) At the Melbourne session, verbal amendments were made before the first
report and after the fourth report.

.§ 157. " Powers, Privileges, and Immunities."

The rights, duties, powers, privileges, and immunities of each House of the British

Parliament, and of the committees and members of each House, form a part of the

1 common law technically called the lex et con»uetudo parliamenii. This law of Parliament

I is only to be collected " out of the ancient rolls of Parliament and other records, and by

: precedents and continual experience." (Coke, 4 Inst. 15.) The sole evidence of the

1 ancient law of Parliament is to be found in the' declarations, customs, and usages of

I Parliament. Each House may expound the law of Parliament and vindicate its own

! privileges, but no new privileges can be created. In 1704 at a joint conference of the

1 Lords and Commons, it was resolved : that neither House of Parliament has any power

by vote or declaration to create for itself new privileges not warranted by the known

laws and customs of Parliament. (May, 10th ed. p. 61.)

PowEKS AND Privileges. — The following are among the principal powers and
privileges of each House, and of the members of each House, of the Imperial Parliament,
as now known to the law : —

(i.) The power to order the attendance at the bar of the House of persons whose

conduct has been brought before the House on a matter of privilege,
(ii.) The power to order the arrest and imprisonment of persons guilty of con-
tempt and breach of pri^nlege.
j (iii ) The power to arrest for breach of privilege by the warrant of the Speaker.

(iv.) The power to issue such a warrant for arrest, and imprisonment for
contempt and breach of privilege, without showing any particular grounds
or causes thereof,
(v. ) The power to regulate its proceedings by standing rules and orders having

the force of law.
(\i.) The power to suspend disorderly members.

(vii.) The power to expel members guilty of disgraceful and infamous conduct.
1 (^Tii.) The right of free speech in Parliament, without liability to action or im-
peachment for anjthing spoken therein ; established by the 9th article of
the Bill of Rights,
(ix. ) The right of each House as a body to freedom of access to the sovereign for
the purpose of presenting and defending its views.

Breaches of Privlleges. — The following are instances of breaches of privileges : —

(i.) Wilful disobedience to the standing rules and orders of the House passed in

the exercise of its constitutional functions,
(ii.) Wilful disobedience to particular orders of the House, made in the exercise
of its constitutional functions.
I (iii. ) Wilfully obstructing the business of the House.

(iv.) Insults, reflections, indignities and libels on the character, conduct and

proceedings of the House and of its members,
(v.) Assaults on members of the House,
(vi. ) Interference with the oflBcers of the House in the discharge of their duties.

502 COMMENTARIES ON THE CONSTITUTION. [Sec. 49.

ExFoiiCEMENT OF Privile«E3. — The privileges of Parliament are enforced, and
breaches thereof punished, by the power vested in each House to order the arrest and'
imprisonment of offenders. The power of commitment, with all the authority which can
be given by law, is said to be the Keystone of Parliamentary privilege.

•' Either House may adjudge that any act is a breach of privilege and contempt ; and
if the warrant recites that the person to be arrested ha^ been guilty of a bi'each of privi-
lege, the courts of law cannot inquire into the grounds of the judgment, but must leave
him to suffer the punishment awarded by the High Court of Parliament, by which he
stands committed." (May's Pari. Prac. 10th ed. p. 66.)

" The Habeas Corpus Act is binding upon all persons whatever, who have prisoners
in their custody ; and it is therefore competent for the judges to have before them
persons committed by the Houses of Parliament for contempt ; and it is the practice for
the Serjeant-at-arms and others, by order of the house, to make returns to writs of
habeas corpus." (Jd. p. 67.)

" But although the return is made according to law, the parties who stand com-
mitted for contempt cannot be admitted to bail, nor the causes of commitment inquired
into, b}' the court of law." (Id p 67.)

"Itmaj^ be considered, accordingly, as established, beyond all question, that the
causes of commitment by either house of Parliament, for breaches of privilege and con-
tempt, cannot be inquired into by courts of law ; but that their ' adjudication is a con-
viction, and their commitment, in consequence, an execution.' No other rule could be
adopted consistently with tlie independence of either house of Parliament ; nor is the
the power thus claimed by Parliament greater than the power conceded by the courts to
one another." (/d. p. 67)

'"One qualification of this doctrine, however, must not be omitted. When it
appears, upon the return of the writ, simply that the party has been committed
for a contempt and breach of privilege, it has been universally admitted that it is
incompetent for the courts to inquire further into the nature of the contempt ; but if tlie
causes of commitment were stated on the warrant, and appeared to be beyond the
jurisdiction of the house, it is probable, judging by the opinion expressed by Lord Ellen-
borough, in Burdett v. Abbot (5 Dow 165 ; 14 East 1), and by Lord Denman in the case
of the sheriff of Middlesex (11 A. and E 273), that their sufficiency would be examined.
The same principle may be collected from the judgment of the Exchequer Chaniber in
Gosset V. Howard (10 Q.B. 359), where it is said ' It is presumed, with respect to such
writs as are actually issued by superior courts, tliat they are duly issued, and in a ca.te
in which they have jurisdiction, unless the contrary appears on the face of them.' " {Id.
p. 68.)

Immunities. — The following are instances of Parliamentary immunities : —

(i. ) Immunity of members for anything said by them in the course of Parlia-
mentary debates.

(ii.) Immunity of members from arrest and imprisonment for civil causes whilflt
attending Parliament, and for forty days after every prorogation, and for
forty days from the next appointed meeting.

(iii.) Immunity of members from the obligation to serve on juries.

(iv. ) Immunity of witnesses, summoned to attend either House of Parliament,
from arrest for civil causes.

(v.) Immunity of Parliamentary witnesses from being questioned or impeachecl
for evidence given before either House.

(vi.) Immunity of officers of either House, in immediate attendance and se^^■lce
of the House, from arrest for civil causes.

What are not Privilkoks. — Neither House has a right to promulgate stundinj:
rules and orders, or to make or enforce any particular votes or resolutions, whidi an'
contrary to the common law, or to the statute law of the country. Several historical cases-
have established the principle that there are defined limits to parliamentary privilege,
and that any attempted exercise of privilege, in excess of that recognized by law, if «"'
checked by the force of public opinion, may be pronounced illegal on appeal to the courts
of law. It is an acknowledged right of the House of Commons to expel a niend>er, «''"
disgraces or defies it, but the House could not legally go further and declare liim ''"'
qualified for re-election.

4 157.] BOTH HOUSES OF PARLIAMENT. 503

" In 1764, John Wilkes was expelled, for being the author of a seditious libel. In
the next Parliament (Hai February, 1769) he was again expelled for another libel ; a new
writ was ordered for the county of Middlesex, which he represented, and he was re-
elected without a contest ; upon which it was resolved, on the 17th February, 'that,
having been in this session of Parliament expelled this house, he was and is
incapable of being elected a member to serve in this present Parliament.' The election
was declared void : but Mr. Wilkes was again elected, and his election was once more
declared void, and another writ was issued. A new expedient was now tried : Mr.
Luttrell, then a member, accepted the Chiltern Hundreds, and stood against Mr. Wilkes
at the election, and, being defeated, petitioned the house against the return of his
opponent. The house resolved that, although a majority of the electors had voted for
Mr. Wilkes, Mr. Luttrell ought to have been returned, and they amended the return
accordingly. Against this proceeding the electors of Middlesex presented a petition,
without effect, as the house declared that Mr. Luttrell was duly elected These pro-
ceedings were proved by unanswerable arguments to be illegal ; and on the 3rd May,
1782, the resolution of the 17th February, 1769, was ordered to be expunged from the
1 nuuals, as 'subversive of the rights of the whole body of electors of this kingdom.' In
', Mr. Bradlaugh, having been expelled, was immediately returned by the electors
> jrthampton ; and no question was raised as to the validity of his return." (May's
I Pari. Prac. 10th, p. 5:^.)

The House of Commons could not, by passing a particular or general order
[authorize the publication of parliamentary' papers containing libels. In the case of
Stockdale v. Hansard (18.36), 9 A. and E. p. 1, it was held to be no defence in law, to an
action for publishing a libel, that the defamatory matter was part of a document which
was, by order of the House of Commons, laid before the House, and which was after-
wards, by order of the House, printed and published b}* the defendant. In consequence
of that decision the Act 3 and 4 Vic. c. 9 was passed which provided that where an
action or criminal prosecution, similar to the above, is commenced, it can be stayed by-
bringing before the court or judge a certificate under the hand of the Lord Chancellor,
3r of the Speaker of the House of Commons, to the effect that the publication in question
(ras by order of either House, together with an affidavit verifying the certificate. What
;ould not be legally done by one House under cover of privilege could, withoiu any
lifficulty, be legalized by an act of Parliament ; the power of Parliament being
mlimited.

PRi\-iLEaKS OF CoLO.vi.AL LEGISLATURES. — The law and custom of Parliament (lex
U coDvtvAtvdo parli'imenti ) is not a part of the common law which Englishmen are pre-
umed to have carried with them, as their political birthright and heritage when they
ounded new settlements and colonies beyond the seas. The inherent powers and
irivileges of colonial legislative bodies which have no express grant of powers and
rivileges similar to those of the British Parliament, have been considered and
xpounded by the highest legal tribunals of the Empire in a number of leading cases,
he principles affirmed were (1) that a colonial legislative body, whether it has been
itablished by Royal Charter, or by statute of the Imperial Parliament, is not entitled
> enjoy and exercise the powere, privileges, and immunities of the Houses of the British
arliament, unless those powers, privileges, and immunities have been expressly con-
rred upon such a body hy Imperial statute ; (2) that such legislative assemblies can,
ithout express grant, exercise all regulating and self-preserving powers that are neces-
ry for their existence, and for the proper exercise of the functions they are intended to
ecute. Whatever, in a reasonable sense, is necessar\' for these purposes is impliedly
anted, whenever any such legislative body is established by competent authority,
jtese principles are founded on the maxim, " quaiulo lex cUiqnid alicui concedit, con-
mur et id line quo res ipna esse non potest." For those purposes protective and self-
fensive authority only, and not punitive, are necessar}'. If a memter of a colonial
gislative Assembly is guilty of disorderly conduct in the House, while it is sitting, he
y be removed or excluded for a time or even expelled. The power to suspend a
mber guilty of obstruction or disorderly conduct, during the continuance of any
ing. was held to be reasonably necessary for the proper exercise of the functions of
Legislative Assembly. It was also held that the same doctrine of reasonable

504 COMMENTARIES ON THE CONSTITUTION. [Sec. 49.

necessity would authorize a suspension until submission or apology by the offending
member, but that such legislative bodies had no power to order the imprisonment of dis-
orderly members or of other persons guilty of breach of privilege and contempt.
(Kielley v. Carson, 4 Moore, P.C. 63 ; Doyle v. Falconer, L.R. 1 P.C. 328 ; Fenton v.
Hampton, 11 Moo. P.C. 360 ; Barton v. Taylor, 11 App. Ca. 197.)

Sec. 35 of the Constitution Act of New South Wales, scheduled to 18 and 19 Vic.
c. 54. enacted that the Legislative Council and Legislative Assembly of that colony
should, from time to time, prepare and adopt standing rules and orders, provided that
uch rules and orders should be approved by the Governor. In pursuance of this power
the Assembly adopted a standing order as follows : "In all cases not specially provided
for hereinafter, or by sessional or other orders, resort shall be had to the rules, forma,
and usages of the Imperial Parliament, which shall be followed so far as the same can
be applied to the proceedings of this House." At the time when the standing order
was so approved, it was one of the rules or usages of the Imperial Parliament for either
House of Parliament to suspend from the service of the House for such period as it
should name, or, without naming any period of suspension, until it should give direction*
in the matter, any member persistently and wilfully obstructing the business of the
House. Subsequently to the passing of the standing order a rule was adopted by the
House of Commons, authorizing the suspension of an obstructing member for a week on
the first occasion, for a fortnight on the second occasion, and for a month on the third or
any other occasion. The effect of this standing order was considered in 1884 by the
Supreme Court of New South Wales, and afterwards by the Privy Council, on appeal,
in the case of Taylor v. Barton (6 N.S.W. L.R. 1, 11 App. Ca. 197), in which the
plaintiff, a member, sued the Speaker of the Legislative Assembly to recover damages
for assault in directing the Serjeant-at-Arms to remove him from the Chamber. The
plaintiff had been " suspended from the service of the House " for obstruction. No
term of suspension was specified in the resolution directing suspension. Within a week
from the passing of the resolution of suspension Mr. Taylor re-entered the chamber an<i
was thereupon removed, which constituted the assault complained of.

It was held by the Supreme Court, and by the Privy Council on appeal, that the
resolution must not be construed as operating beyond the sitting during which tlie
resolution was passed ; that the standing order of the Legislative Assembly adopting so
far as is applicable to its proceedings the rules, forms, and usages in force in the British
House of Commons, and assented to by the Governor, was valid, but must be construed
to relate only to such rules, forms, and usages as were in existence at the date of the
order. (Barton [appellant] v. Taylor [respondent], 11 App. Ca. p. 197.)

The Privy Council was of opinion that the authority conferred upon the Legislative
Assembly, by the Constitution Act, was not limited by the principles of common law
applicable to those inherent powers which, without express grant, must be implied from
mere necessity ; but that its authority was sufficient to enable the Assembly to adopt
from the Imperial Parliament, or pass by its own authority, any standing order giving
itself power to punish an obstructing member, or remove him from the Chamber for any
period longer than the current sitting. This of course could not be done by the
Assembly without the Governor's assent. The affirmance of the judgment appealed
from was founded on the view, not that it could not have been done, but that nothing
appeared on the record which gave the resolution, suspending the respondent, a lonaer
operation than the current sitting. (Barton v. Taylor, 11 App. Ca. 197.)

Section 34 of the Constitution Act of Victoria, scheduled to 18 and 19 Vic. c. •>•»
(1st July, 1855), authorized the Legislative Council and Legislative Assembly to prepare
and adopt standing rules and orders, which, when approved by the Governor, sliould je
binding and of full force in law. Sec. 35 of the same Act provided : — l

" It shall be lawful for the Legislature of Victoria by any Act or Acts to defiuo tlw
privileges, immunities, and powers to be held, enjoyed, and exercised by the t ouQci
and Assembly and by the members thereof respectively. Provided that no suci

§ 157.] BOTH HOUSES OF PARLIAMENT. 505

privileges, immunities, or powers shall exceed those now held, enjoyed, and exercised
by the Commons, House of Parliament, or the members thereof."

Section 35 of the Constitution of South Australia (■24th Oct., 1856), contained a
similar clause enabling the Parliament of that colony to declare its privileges in like
manner. In pursuance of the power conferred by sec. 35 the Parliament of Victoria
passed the Act 20 Vic. No. 1, of which sec. 3 (re-enact€d in sec. 10 of the Constitu-
tion Act Amendment Act, 1890) was as follows : —

"The Legislative Council and Legislative Assembly of Victoria respectively, and
the committees and members thereof respectively, shall hold, enjoy, and exercise such
and the like privileges, immunities, and powers as, and the privileges, immunities, and
powers of the said Council and Assembly respectively, and of tiie committees and
members thereof respectively, are hereby defined to be the same as, at the time of the
passing of ' The Constitution Statute ' were held and enjoyed and exercised by the
Commons House of Parliament of Great Britain and Ireland and by the committees and
members thereof, so far as the same are not inconsistent with the said Act, whether
such privileges, immunities, or powers were so held, possessed, or enjoyed by custom,
statute, or otherwise."

I On 29th April, 1862, Mr. GJeorge Dill, the publisher of the Argus, was arrested on a

I warrant signed by the Speaker of the Legislative Assembly, by direction thereof, on a

! charge of having printed and published a libel concerning the Assembly' and one of its

1 committees. On his being brought to the bar of the House, Mr. Dill was adjudged

t guilty of contempt, and was ordered to be detained in custody for the space of one

mouth. Mr. Dill applied for, and was afterwards brought before a judge of the Supreme

Court on, a writ of habeas carpus. Mr. Palmer, the Serjeant-at-Arms, made a return to

the writ, justifying detention under the mandate of the warrant of the Speaker,

iccordiug to the order of the House. The warrant in this case set forth the nature of

:he contempt complained of as the ground for commitment. It was held by the Court

• hat the power given by sec. 35 of the Constitution Act was well exercised by the

legislature of Victoria in the enactment of 20 Vic. No. 1, sec. 3, that the Legislative

wouncil and Legislative Assembly of Victoria have all the privileges, immunities and

towers which were legally held, enjoyed, and exercised by the Commons House of

'arliament at the time of the passing of the "Constitution Statute," and that the publi-

ation outside the House, in a newspaper, of an article which the Assemby adjudged

3 be a libel on the Assembly, on a select committee thereof, and on a member of each,

«a such member, is a contempt for which the House has authority to commit. (In

Dill, 1 W. and W. [L.] 171.)

The offending publisher was then remanded in custody. Subsequently he brought
1 action against Sir Francis Murphy, the Speaker, for false imprisonment. In that
:tion it was held by the Supreme Coui't that the impossibility of the Legislative Council
Assembly exercising the power of impeachment did not restrict the general words of
c. 35 of the Constitution Act creating the power, or render invalid an enactment which
ve other powers that might be exercised by the Council and Assembly. (Dill v.
urphy, 1 W. and W., L. 342, 356.) On appeal to the Privy Council, the decision of
Supreme Court was atfirmed. The word " defined " was held equivalent to
ieclared," and the power given by the Act had been properly exercised. (1864, 1 Moo.
C. N.S. 487.)

On 11th March, 1869, the Legislative Assembly of Victoria appointed a select
< nmittee to enquire and report upon certain charges which had been made relating to
chai-acter and conduct of some of its members. Hugh Glass was examined as a
neas before the committee, which afterwards reported to the House that Hugh Glass
I John Quarterraan had been guilty of bribing and unduly influencing certain members
he Assembly. Glass and Quarterman were then adjudged guilty of contempt and of
ach of privilege. They were arrested on the Speaker's warrant, brought before the
'ise, found guilty and committed to the custody of the keeper of the Melbourne gaol.
3 warrant in this case was couched in general terms, and did not recite particulars of
ti contempt and breach of privilege. Whilst they were in gaol the Speaker issued

o06 COMMENTARIES ON THE CONSTITUTION. [Sec. 49.

another warrant against Glass, similar to the first except that it contained no reference
to Quarterman. On 30th April Glass obtained a writ of haheaa corpiis, directed to the
keeper of the gaol, who made a return to the writ, relying on the two warrants as the
cause of his detaining the prisoner. The Chief Justice, Sir William F. Stawell, assisted
by two other judges, heard the arguments of counsel for and against the discharge of
Glass. On the 1st May prisoner was discharged on the ground that the warrant was
bad, as it did not describe the contempt so as to show that it was of a kind for which
the House of Commons might have committed in 1855. By direction of the House a
rule niii was obtained to set aside the order of the Chief Justice. This rule was argued
before the Full Court, which decided that it had no jurisdiction to rescind the order of a
judge made on the return to a writ of habeas corpus. The Speaker petitioned Her
Majesty in Council for special leave to appeal against the decision of the Chief Justice,
and also against that of the Full Court. On the case coming before the Privy Council
for hearing, the appeal was allowed, and the orders of the court in the colony were
reversed. The Privy Council held that the Assembly had, under sec. 35 of the
Constitution Act and the Act 20 Vic. No. 1, the same powers and privileges as those of
the House of Commons, and, among them, the power of judging for itself what is a
contempt, and of committing for contempt by a warrant stating generally that a
contempt has been committed. (Speaker of the Legislative Assembly v. Glass, 1871,
L.R. 3P.C. 560.)

The Legislative Assembly of Victoria, it has been held, does not possess the
privilege, by passing resolutions imposing customs duties, to authorize the collection of
those duties by a customs officer till the end of the session of Parliament in which such
resolutions have been passed. The Supreme Court has power to determine the legality
of the privilege. And the statement in the pleadings of such a privilege is a question of
law and not of fact, and sec 2 of Act 20, Vic. No. 1, making the journals of the House of
Commons, and consequently of the Assembly, prima facie evidence of the privilege, does
not turn the privilege into a question of fact ; and therefore the privilege could not be
admitted by a demurrer to a plea averring such privilege. (Stevenson v. The Queen,
2 W.W. & A'B[L.] 14.3.)

§ 158. " Such as are Declared by the Parliament."

This section authorizes the Federal Parliament, by an ordinary act of legislation, to
declare what shall be the powers, privileges, and immunities of the Senate and its mem-
bers and committees, and of the House of Representatives and its members and com-
mittees. The limitation which is contained in sec. 18 of the Canadian Constitution
(amended by 38 and 39 Vic. c. 38), in sec. 35 of the Victorian Constitution, and ui
sec. 35 of the South Australian Constitution, viz., that the powers, privileges, and im-
munities so declared shall not exceed those then held and enjoyed by the CommonB
House of Parliament, does not appear in this section. The Federal Parliament hM
therefore unrestricted authority to define and declare its powers, privileges and im-
munities. In the exercise of that authority it could not legally arrogate to itself a new
jurisdiction, not within the scope of this section. In the absence of such legislation the
powers, privileges, and immunities of each House, and of the committees and members
of each House, will be those of the House of Commons, as known to law at the estao-
liahment of the Commonwealth.

§ 159.] BOTH HOUSES OF PARLIAMENT. 507

Rules and orders.

50. Each House of the Parliament may make rules and
orders*"® with respect to —

(i.) The mode in which its powers, privileges, and

immunities may be exercised and upheld :
(ii.) The order and conduct of its business and pro-
ceedings either separately or jointly with the
other House.

UsiTED States.— Each House may determine the rales of its proceedings, panish its members
for disorderly behaviour, and, with the concurrence of two-thirds, expel a member. —
Const., Art. I., sec. 5, sub-s. 2.

Historical Note. — In the clause as adopted at the Sydney Convention of 1891, and

Ithe Adelaide session of the Convention of 1897, the matters as to which rules and

orders might be made were somewhat elaborately defined in six sub-clauses, the last of

jwhich was : " Generally for the conduct of all business and proceedings of the Senate

,ind House of Representatives severally and collectively. " There was no sub-clause

jlealing with the exercise of powers, privileges, and immunities. At the Adelaide

Session, Sir Joseph Abbott called attention to the need of some power to protect the

|)rivilege3 of the Houses, and suggested that the power to make standing orders was too

narrow. He moved to omit all the sub-sections, and insert words empowering each

'louse to make such standing orders as it should think tit, and giving to such orders the

■ of law. This was objected to as being too wide, and Sir Joseph Abbott withdrew

iConv. Deb., Adel., pp 756-60.) At the Sjdney session, on Mr. Isaacs' motion, the

j."ord "standing," before "' rules and orders," was omitted. (Conv. Deb., Syd., 1897,

1035.) At the Melbourne session, before the first report, a new sub-clause was

iserted : " The mode in which the powers, privileges, and immunities of the Senate and

|f the House of Representatives respectively may be exercised and upheld." After the

lurth report the five specific sub-clauses were omitted, and verbal amendments were

)tade.

§ 159. " Rules and Orders.''

It will be observed that this section recognizes the important distinction between
wers, privileges, and immunities," and the " rules and orders " by which such
ei-s, &c., are enforced.

Sub-sec. i. enables each House of the Federal Parliament to makes rules and orders,

ing the mode or manner in which its powers, privileges, and immunities may be

ised and upheld. It does not authorize the declaration of amy power, privilege, or

unity, but merely the procedure requisite for the maintenance and enforcement of

-ame. Thus, rules could be made prescribing the formalities to be observed in

4smoning persons to appear at the bar of the House, or to give evidence before its

' nmittees ; the preparation, form, and execution of warrants for the arrest of persons

y of contempt, and breach of privilege, and the form of warrants of commitment.

Sub-sec. ii. enables each House to make rules and orders regulating the conduct of

■usiness and proceedings, either when acting separately, or when acting jointly with

t- other House. Rules and orders may, according to the practice of the Imperial

'rliament, be classified as follows : ( 1) standing rules and orders, (2) sessional rules and

rs, (3) orders and resolutions undetermined in regard to duration.

, SxAyDiSG Orders. — These are permanent rules for the guidance and government

«tthe House, which endure from Parliament to Parliament until vacated or repealed.

T^?y relate to such matters as the days on which the sittings of the House are held, the

508 COMMENTARIES ON THE CONSTITUTION. [Sec. 51.

hour for commencement of business, the sequence of business on each day, the distribu-
tion of business, the preservation of order, the closure of debate, the taking of divisions
on question put, the progressive stages of bills, procedure in money bills, examination
of public accounts, standing committees on particular subjects, form and reception of
petitions, seats in the House, witnesses before the House and its committees, admission
and withdrawal of strangers, and orders relating to the introduction and conduct of
private bills. In the House of Lords a standing order cannot be suspended except in
pursuance of notice of motion. In the Commons the rule is not so stringent, and in
cases of emergency a standing order may be suspended without notice, but the unanimous
concurrence of the House is generally necessary. (May, 10th ed. p. 145.)

Sessional Orders. — These are orders or resolutions which are intended and
expressed to last for a session only and which expire at the end of the session.

Orders of Undefined Dtiration. — "By the custom of Parliament any order or
resolution of either House the duration of which is undetermined, would expire with
prorogation ; but many of them are, as part of the settled practice of Parliament,
observed in succeeding sessions, and by different Parliaments, without any formal
renewal or repetition. For examples of resolutions being observed as perrnaneut,
without being made standing orders, may be cited the formal reading of a bill at the
opening of a session; several resolutions regarding procedure on petitions; the resolu-
tion prohibiting members from engaging in the management of private bills ; the time
for presenting estimates ; the rules of the committee of supply ; and the means of
securing a seat in the house by a member on a select committee." (May's Pari. Priic.
lOthed. p. 145.)

PART v.— POWERS OF THE PARLIAMENT.

Legislative powers*"" of the Parliament.

51. The Parliament shall, subject to this Constitution,
have power to make laws for the peace, order, and good
government^*^^ of the Commonwealth with respect to : —

United States.— The Conp-ess shall have power :— Art 1., sec. 8.

Canada.— It shall be lawful for the Queen, by and with the advice and consent of the Senate
and House of Commons, to make laws for the peace, order, and good goveriunent of
Canada, in relation to all matters not coining within the classes of subjects by this Act as-
signed exclusively to the Legislatures of the Provinces ; and for greater certainty, but not
so as to restrict the generality of the foregoing terms of this section, it is hereby declared
that (notwithstanding anything in this Act) the exclusive legislative authority of th*
Parliament of Canada extends to all matters coming within the classes of subjects next
hereinafter enumerated, that is to say :— B.N.A. Act, 18(i7, sec. 91.

Historical Note.— In the Commonwealth Bill of 1891, the general words of this

section were : — "The Parliament shall, subject to the provisions of this Constitution,

have full power and authority to make all such laws as it thinks necessary for tl»

peace, order, and good government of the Commonwealth, with respect to all or any of

the matters following, that is to say." At the Adelaide session, 1897, these words

were reproduced, except that the word "laws" was substituted for the phrase "wl

such laws as it thinks necessary." At the Sydney session, there was a short debate upon

the' words "peace, order, and good government." (Conv. Deb., Syd., 1897, pp-

1035-7.) At the Melbourne session, drafting amendments were made before the first

report and after the fourth report.

§ 160. " Legislative Powers."

This important section, containing .39 sub-sections, enumerates the main legislative
powers conferred on the Federal Parliament. They are not expressly described a«
cither exclusive powers or concurrent powers, but an examination of their scope aiw'
intent, coupled with subsequent .sections, will show clearly that, whilst some of tiicinart'
powers which either never belonged to the States, or are taken from the States and are

§ 160.]

POWERS OF THE PARLIAMENT. 509

vested wholly in the Federal Parliament to the exclusion of action by the State legisla-
tures, otliers are powers which may be exercised concurrently by the Federal Parliament
uid by the State legislatures.

Classificatiox of Powers. — The powers conferred on the Federal Parliament
may be classified as (1) the new and original powers not pre\iously exercised by the
States, such as " Fisheries in Australian waters beyond territorial limits," "external
affairs," "the relations of the Commonwealth with the islands of the Pacific," &c. ; (2)
old powers previouslj' exercised by the colonies and redistributed, some being (a) ex-
clusively vested in the Federal Parliament, such as the power to impose duties of
customs and excise, and the power to grant bounties on the production or export of
goods, after the imposition of uniform duties of customs ; and others being {b) concur-
rently exercised b%' the Federal Parliament and the State Parliaments such as taxation
(except customs and excise), trade and commerce (except customs, excise, and bounties),
quarantine, weights and measures, kc. The rule of construction is, that the legislative
mthority of the Federal Parliament with respect to any subject is not to be construed
|is exclusive, " unless from the nature of the power, or from the obvious results of its
ppei-atioDS, a repugnancy must exist, so as to lead to a necessary conclusion that the
:»ower was intended to be exclusive;" otherwise, "the true nile of interpretation is
hat the power is merely concurrent." (Story, Comm., § 4.38.)

Plenary Xature of the Powers. — An important point to consider is whether

lie Legislative powers vested in the Federal Parliament are to be regarded as plenary,

l>3olute, and ^MO-'ii-sovereign, or whether tliey are merely entrusted to the Federal

arliament a^n agent of the Imperial Parliament, so as to come within the eflFect of

" maxim delegatus non potent delegare (Broom's Leg. Max. oth ed. p. 840), according to

; a person or body to whom an office or duty is assigned bj* law cannot lawfully

'.ve that office or duty on another unless expressly authorized. The distinction

• en the two classes of powers, plenary and delegated, was discussed by the Privy
jjuncil in the case of The Queen v. Burah (1878), 3 App. Ca. p. 889. The question
'ere raised was the legality of a section of an Act passed by the Governor-General

uncil of India, conferring on the Lieutenant-Governor of Bengal the power to
:nine whether the Act or any part of it should be applied to certain districts The^
Council, per Lord Selborue, said : —

Where plenarj- powers of legislation exist as to particular subjects, whether in an
ial or a provincial • Legislatui-e, they may (in their Lordships judgment) be well
.sed, either absolutely or conditionall}'. Legislation, conditional on the use of
ular powers, or on the exercise of a limited discretion, entrusted by the Legis-

• to persons in whom it places confidence, is no uncommon thing ; and, in
circumstances, it may be highly convenient. The British Statute Book abounds

examples of it ; and it cannot be supposed that the Imperial Parliament did not,
constituting the Indian I..egislature, contemplate this kind of conditional legisla-
s within the scope of the Legislative powers which it from time to time conferred."
vird Selborne, The Queen v. Burah, 3 App. Ca. 906.)

At the same time their Lordships were of opinion that the Governor-General in

il could not create in India, and arm with genei-al legislative authority, a new

itive body not created or authorized bj' the Imperial Act constituting a Council.

II the case of Hodge i-. The Queen 0883), 9 App. Ca. 117, the question raised for

■cision of the Privy Council was the constitutionalitj' of the Liquor License Act

, S3. 4, 5, by which the Provincial Legislature of Ontario gave authority to a Board

mmissioners to enact regulations for the government of taverns. The appellant

""•ijeen convicted for a breach of one of the regulations passed by the Commissioners,

*nlhe appealed on the grounds (inter alia) that the British North America Act, 1867,

rred no authority on the Provincial Legislatures to delegate their powers to Com-

jners or any other persons; that a Legislature committing the power to make

i*Jaations to agents or delegates thereby efl'aced itself ; and that the power conferred

*jy le Imperial Parliament on the local Legislatures could be exercised in full by these

oo(« only, according to the maxim delegatus non potest delegare. The Privy Council

510 COMMENTARIES ON THE CONSTITUTION. [Seo.St

in considering the legislative power of the Provincial Legislatures pointed out the
difference between tlieir constitution and that of the Legislative Council of India.

" They are in no sense delegates of, or acting under any mandate from the Imperial
Parliament. When the Britisli North America Act enacted that there should be a
legislature for Ontario, and that its Legislative Assembly should have exclusive authority
to make laws for the Province, and for provincial purposes in relation to the matter*
enumerated in sect. 92, it conferred powers not in any sense to be exercised by delega-
tion from or as agents of the Imperial Parliament, but autliority as plenary and as ample
within the limits prescribed by sec. 92 as the Imperial Parliament in the plenitude of
its power possessed and could bestow. Within these limits of subjects and area the
local legislature is supreme, and has the same authority as the Imperial Parliament, or
the Parliament of the Dominion, would have had under like circumstances to confide to a
municipal institution or body of its own creation authority to make by-laws or resolu-
tions as to subjects specified in the enactment, and with the object of carrj-ing the
enactment into operation and effect. It is obvious that such an authority is ancillarj' to
legislation, and without it an attempt to provide for varying details and maciiinery to
carrj' them out might become oppressive, or absolutely fail The verj' full and very
elaborate judgment of the Court of Appeal contains abundance of precedents for thi»
legislation, entrusting a limited discretionary authority to others, and has many illustra-
tions of its necessity and convenience. It was argued at the bar that a legislature com-
mitting important regulations to agents or delegates effaces itself. That is not so. It
retains its pow er intact, and can, whenever it pleases, destroy the agency it has created,
and set up another, or take the matter directly into its own hands. How far it shall
seek the aid of subordinate agencies, and how long it shall continue them, are matters
for each legislature, and not tor Courts of Law, to decide. (Per Sir B. Peacock : Hodge v.
The QiTcen, 9 App. Ca. 132.)

Applying the principles established in the foregoing cases to the Constitution of the
Commonwealth, we may draw the conclusions : (1) As the words of the Imperial Act,
creating the Federal Parliament and conferring on it legislative powers, are similar in
substance and intent to those of the British North America Act, conferring exclusive
legislative authority, it follows that the Federal Parliament is in no sense a delegate or
agent of, or acts under any mandate from, the Imperial Parliament. (2) Its authority
within the limits prescribed by the Constitution are as plenary and ample as the Imperial
Parliament in its plenitude possessed and could bestow. (3) Within those limits the
Federal Parliament can do what the Imperial Parliament could do, and among other
things it can entrust to a body of its own creation power to make by-laws and regulation*
respecting subjects within its jurisdiction.

Limitations of Federal Legislative Power. — As we proceed with an analytical
examination of section 51 it will be seen that whilst several of its sub sections contain
grants of legislative power in general and unlimited terms, the grants conveyed bj
other sub-sections are qualified or subject to restraints. These are known as <
tional limitations. Take sub-section 1. Tliere, the Federal Parliament i.s
power to legislate respecting trade and commerce " with other countries and aniuiig t ■
States;" the words quoted are words of limitation excluding from Federal control tin'
internal commerce of each State. This is obviously a federal limitation, justit
considerations of federal policy. It is not founded on any distrust of the i
Legislature ; it is not designed for the protection of individual citizens of i'"
Commonwealth against the Federal Legislature. It is, in fact, one of the stipul'
tions of the federal compact. So the condition annexed to the grant of taxMi;
power is, that there must be no discrimination between States in the exercise "
that power. Tiiis, again, is not a limitation for the protection of private citu"'"
of the Commonwealtli against the unequal use of the taxing power ; it is foiimi'
on federal considerations; it is a part of the federal bargain, in which the fet'i"
and the people thereof have acquiesced, making it one of the articles of i
political partnership, as effectually as other leading principles of the Conalituti>
Another federal limitation annexed to a grant of legislative power is that '•
granted by the Federal Parliament " shall be uniform throughout the Commmiu
The authority of the Federal Parliament over bounties is fettered in the same n»''-'
and for the same reasons tliat its authority to tax is fettered.

§§ 160-161 1

POWERS OF THE PARLIAMENT. 51 1

Attention having been drawn to federal limitations to be found in grants of power
contained in sec. 51, the subject may be here further elucidated by the statement that
sec. 51 is not the only section of the Constitution in which limitations to the grants therein
made are to be found. Logicalh-, if not for perspicuity, the limitation of a power ought
to be associated with or in proximity to the conveyance of power. But this rule is not
uniformally observed in the di-afting of Constitutions. Thus the grant of power over
trade and commerce in sec. 51-i. is subject to further qualifications and restrictions <^
contained in subsequent sections. By sec. 92, the Federal Parliament, in common with
the State Parliaments, is restrained from interfering with the freedom of inter-state
trade and commerce, after the imposition of uniform duties of customs. By sec. 98, the
Federal Parliament is unable to pass commercial regulations which may give preference
to one State over another State. In like manner the taxing power is subject to other
qualifications and restrictions. The Federal Parliament cannot impose a tax which
would operate in derogation of the freedom and equality of inter-state trade and com-
merce ; sees. 92 and 98. It cannot impose a tax on property of any kind belonging to a
State; sec. lU.

The first part of sec. 115 declares that the Commonwealth (Federal Parliament)

shall not make a law establishing any religion. This is an absolute prohibition, an

absolute denial of power, which stands in contrast to a limitation or cutting down of a

power which is gianted. There is, in the Constitution, no express or implied grant of

oower over religion which the first part of this section can possibly qualify or limit (see

S^ote § 462). The last part of the section, pro\nding that " no religious test shall be

equired as a qualification for any ofiice.or public trust under the Commonwealth," is a

rue aud legitimate limitation of a power granted by sec. 69 ; yet that limitation cannot

>e described as a fe<leral limitation, warrantable and explainable by federal consideia-

ions. It is a notable instance of a national, as compared with federal, limitation. It

\i an example of the limitation of power founded on what Mr. Lefroy calls " distrust of

^gislatures." (Law Quarterly Review, July, 1899, p. 286. See also Lefroy, Legisl.

ower in Canada, Introd. p. xlv.)

X.ATtTRE AND DiSTRiBrTiox OF PowERS.— It was Competent for the people to invest
i efleral government with all the powers they might deem proper and necessary, to

vtend or restrain these powers, and to give them a paramount authoritj'. (Martin f.

unter's Lessee, 1 Wheat. 304 ; Baker, Annot. Const, p. 15.)

The Federal government can claim no powers not granted to it by the Constitution ; i

)wer8 actually granted must be such as are given expressly or by necessary implication. I

^e instrument is to have a reasonable construction according to the import of its terms;
-mere a power is expressly given in general terms it is not to be confined to particular

ses, unless tliat construction grows out of the context or by necessary implication.

The Constitution deals in general language. It does not provide for minute speci-
'tions of powers or declare the means by which those powers shall be carried into
ution. (Id.)

■'I now pass to that which is, perhaps, the most delicate and most important part -
lis measure, the distribution of powers between the central government and the 7^
authorities ; in this, I think, is comprised the main theory and constitution of
ral Government ; on this depends the principal working of the new system ; the
object which we have in view is to give to the central government those high
' etions and almost sovereign powers by which general principles and uniformity of
Ijislation may be secured on those questions that are of common import to all the
B vinces, and at the same time to retain for each Province such an ample measure of
BJnicipal liberty and self-government as will allow, and indeed compel, them to exercise
*Ue local powers which they can exercise with great advantage to the community. "'
(|rd Carnarvon, in presenting the Canadian Constitution to the House of Lords,
1^7.)

§ 161. " Peace, Order, and Good GoYernment."

These, or words nearly similar, have been used in most of the Constitutional Act
Med by the Imperial Parliament, conferring local legislatures on British colonies. The
MH Geo. III. c. 83, s. 12, authorized the legislative body appointed thereunder to make

512 COMMENTARIES ON THE CONSTITUTION. [Sec. 51.

ordinances for " the peace, welfare, and good government " of the province of Quebec.
The Act 31 Geo. III. c 31 established legislatures for Upper Canada and Lower Canada
respectively, with power to make laws for " the peace, welfare, and good government"
thereof. The Act 3 and 4 Vic. c. 35, which united the Upper and Lower Provinces
established a Parliament of two Houses with power to make laws for " the peace,
welfare, and good government " of Canada. The British North America Act, 1867, (30
and 31 Vic c. 3) gave the Parliament of the Dominion of Canada power to make laws for
" the peace, order, and good government of Canada," in relation to matters not exclusively
assigned to the Provinces. By the Act of 9 Geo. IV. c. 83, s. 20, 1829, his Majesty was
empowered to constitute, in the colonies of New South Wales and Van Diemen's Land
respectively, Councils to make laws for " the welfare and good government" of the said
colonies. By the Act 10 Geo. IV. c. 22, 1829, his Majesty was enabled to authorize
any three or more persons resident in the settlement then known as Western Australia,
to make and ordain laws, institutions and ordinances for "the peace, order, and good
government " of the settlement. The Act 3 and 4 Vic. c. 62, s. 3, 1840, authorized Her
Majesty to appoint a Legislative Council in any colony or colonies which might be
erected in any islands comprised within the dependencies of New South Wales, and
such Council was to be authorized to make laws for " the peace, order, and good govern-
ment " of such colony. By 5 and 6 Vic. c. 76, 1842, there was created a legislative
Council in and for New Sbuth Wales, with power to make laws for " the peace, welfare,
and good government" of the colony. In the Act 13 and 14 Vic. c. 59, s. 14, 1850, the
Governors and Legislative Councils of Victoria. Van Diemen's Land, South Australia,
and Western Australia, established, or to be established under that Act, were authorized
to make laws " for the peace, welfare, and good government" of the said colonies. By
the Constitution Act of New South Wales, scheduled to 18 and 19 Vic. c. 54, anew
legislature was created to make laws for the " peace, welfare and good government"
of the colony. The Victorian Constitution Act, scheduled to 18 and 19 Vic. c. 65,
established a legislature to make laws in and for Victoria in " all cases whatsoever."
The Constitution Act of Tasmania (then Van Diemen's Land) of 1st Nov., 1854, called
into existence a new legislature which was declared " to have and to exercise all the
powers and functions of the Legislative Council " which it superseded. The Constitution
Act of South Australia, No. 2, 1855-6, was similarly worded. The Order in Council of
6th June, 1859, creating a legislature in and for the colony of Queensland, authorized it
to make laws for the good government of the colony, and to alter or repeal the Order in
Council. By the Act to consolidate the law relating to the Constitution of Queensland
dated 28th Dec, 1867, it was declared that Her Majesty by and with the advice and
consent of the Council and Assembly could make laws for "the peace, welfare, and good
government of the colony in all cases whatsoever."

SiGNiFiCANCK OF THE WoRDS.— The Federal Parliament has not general power to
make laws for " the peace, order, and good government of the Commonwealth," but only
with respect to matters that are speci6cally enumerated in the section. The question
has been raised as to whether the words " peace, order, and good government" may be
construed so as to qualify, limit, or restrict the grant of power. Another question n.«
been raised as to whether they will tend to increase, enlarge, or magnify the grant <'>
power. These two questions will be found referred to in the extracts and cases givin
below.

Reference may be here made to a third question which has been raised, »s u>
whether the words "for the peace, order, and good government of the Conmionwealtli
will prevent the Federal Parliament from passing a law whicli may be conlined in i ^
operation to a particular State. On this point some assistance may be derive<l from
several leading Canadian cases. In Russell v. The Queen (1882), 7 App. Cas. 829, t'"'
Privy Council held that the Canada Temperance Act, 1878, which was passed by tli''
Dominion Parliament, in order to abolish the retail traffic in intoxicating liquor within
every provincial area, or local option district, in which a majority of the electors atlop «<

^ 161.] POWERS OF THE PARLIAMENT. 513

the Act, was a general law relating to the order, safety, and good morals of the Dominion,
and was therefore within the power conferred upon the Dominion Parliament to make
laws for "the peace, order, and good government of Canada." In Huson v. South
Norwich (1895), 24 S.C.R. (Can.) p. U6, Strong, C.J., said " It is established by Russell
f. The Queen that the Dominion, being invested with authority by section 91 to make
laws for the peace, order, and good government of Canada, may pass what are denomi-
nated local option laws. But, as I understand that decision, such Dominion laws must
be general laws, not limited to any particidar Province."

In the Liquor Prohibition Appeal Case, which came before the Privy Council (1896),

App. Ca. 348, these observations of the Chief Justice were quoted by Mr. Haldane, when

|the following remarks were made : — Lord Watson : " I do not know that they must be

lieneral laws, not limited to any particular Province, that they must be for the benefit

,)f the whole of the Provinces." Lord Herschell : " But to legislate in a matter which is

I local matter, for one Province only, antl merely say we thought it would be for the

jjenefit of all Canada that Ontario should be made a sober place, would be to my mind

legislation about which there would be a good deal of question. I think it is too narrow

iosay that the law must extend to everj' Province ; but, on the other hand, it must not be

jDcal legislation in a particular Province." Lord Morris : " I think the Chief Justice is

nly dealing with the local option laws. . . It is the local option laws, and I think

e is strictly right." (Printed Report of Case, pp. 149-50.)

Mr. Lefroy considers that Mr. Edward Blake's argument on the appeal contains a
irrect summary of the whole matter: — "You have," said Mr. Blake, "the powers
mited, when you come to the Province, by the area and the objects ; provincial area
■id provincial objects are the scope. I think each one of the provincial powers is indi-
jkted in itself to be for provincial purposes. Instead of setting that out generally at
lie commencement, in each one of the articles it is specifically stated. But you find, on
je contrary, unlimited, save by the express exception, general powers both as to scope,
ea, and objects in the Dominion. There is, therefore, as I submit, nothing whatever
indicate in the least degree that the power of the Parliament of Canada was so
joited as to those subjects on which it might enact that it could not„if the welfare of
|e whole community in its opinion demanded, enact with reference to particular parts
*! that community, the legislation which the conditions of that part might, in the
«rest of all, specially demand. It is quite true that it was hoped and expected, and
was a reasonable hope and expectation, that, as a rule, the legislation would be
iieral, extending over the whole area, the subjects Ijeing common. But there is
;ng in these powers which prescribes any such limitation, and it is perfectly clear
the peace, welfare, and good government of the whole community may demand,
bin the undisputed bounds of the legislative powers of the Dominion, an Act of Par-
1 oent afiecting directly not the whole area, not the whole community, but some part
hat community, as to these matters on which the Dominion has power to legislate for
(Lefroy, Leg. Pow. in Canada, p. 580.)

These words are copied from the several Acts of the Imperial Parliament providing
- Lhe establishment of legislatures in the various Australian colonies, and are perfectly
ajropriate when used in reference to the establishment of the legislature which is to
Wiess plenary legislative powers, and have unlimited jurisdiction on all questions
reting to the protection of life and property, and the enforcement of contractual rights
o^verj' kind ; but it is very doubtful if they ought to find a place in connection with
^definition and delegation of limited legislative powers which do not include matters
rating to the daily protection of life and property, or to enforcement of private rights
«|obli^tions in general. It is true that they find a place in the 91st section of the
Mish North America Act, which establishes a federal constitution for Canada : but the
pijiary object of that Act is to limit the powers and jurisdiction of the provincial
wj latures, and to vest the residuum of legislative authority in the Dominion of Canada
JDjie federal parliament. The words in question may, therefore, fitly find a place n
ihj Act, and they were relied upon in the case of Attorney-General 'of Canatla v. the
^mey-General of Ontario, which was decided by the Privy Council last year (App.
'-^{.SQe) to uphold the Act of the Dominion Parliament, which had been challenged on

514 COMMENTARIES ON THE CONSTITUTION. [Sec. 51.

the ground that it had encroached upon the domain of the provincial legislatures. That
decision, in effect, appears to me to be an argument against the insertion of the words ia
question in connection with the definition and delegation of the legislative powers of the
Parliament of the Commonwealth, because they might, in some unforeseen and unexpected
controversy, afford ground for an argument in favour of the jurisdiction of the Parliameut
of the Commonwealth in matters which the several States might claim to be wholly
within their own legislative powers. It cannot be contended that they are required for
the purpose of giving the Parliament of the Commonwealth full power to legislate with
regard to all subjects mentioned in the sub-sections of section 5 1 ; and, if they are not
required for that purpose, they must inevitably encourage the contention that they are-
inserted for some additional purpose. But, if their insertion is not intended to add in
any way to the powers of Parliament, in relation to the matters mentioned in the sub-
sections of section 51, then they violate the canon of drafting, which requires that no
unnecessary words should be u.sed in giving expression to the intention of the legislature.
They are very properly inserted in section 52, because that section confers upon the
Parliament of the Commonwealth plenary and exclusive powers in regard to the several
matters mentioned in the sub-sections of that section. But their presence in section 51
tends to create a resemblance in the scope of the powers conferred by the two sections,
whereas it woidd be much more desirable to make the difference in the purport of each
section as apparent and emphatic as possible." (Memorandum by the Hon. A. Ingiis
Clark, M.P.. Attorney-General for Tasmania, presented to the Federal Convention,
Sj'dney Session, 1897.)

"I should like to submit for the consideration of the leader of the Convention the
question whether the words which the legislature of Tasmania have proposed to omit
might not raise the question whether legislation of the Federal Parliament was in every
instance for the peace, order, and good government of the Commonwealth. Take, for
instance, navigation laws. Might it not be contended that certain navigation law»
were not for the peace, order, and good government of the Commonwealth, and might
there not be litigation upon the point ? We are giving very full powers to the Parliameut
of the Commonwealth, and might we not very well leave it to them to decide whether
their legislation was for the peace, oi'der, and good government of the Commonwealth?
Surely that is sufficient, without our saying definitely that their legislation should be
for the peace, order, and good government of the Commonwealth. I hope the leader of
the Convention will give the matter full consideration with a view to seeing whether
these words are not surplusage, and whether, therefore, they had better not be left out
of the bill altogether." (Mr. N. E. Lewis, Conv. Deb., Syd., 1897, p. 1037.)

The point submitted for consideration by Mr. Clark and Mr. Lewis did not lead to
any debate in the Convention. Mr. Barton stated he had read the reasons through very
carefully, and he had been unable to discover that any of the evils which his hon. and
learned friend Mr. Clark feared might be expected from leaving those words as they
were. The powers were powers of legislation for the peace, order, and good govern-
ment of the Commonwealth in respect of the matters specified. No construction in the
world could confer any powers beyond the ambit of those specified.

In the case Riel v. The Queen, 10 App. Ca. 675, the question was raised as to the
validity of a Canadian Act, 43 Vic. c. 25. providing for the administration of criminal
justice in the North-west Territories. This Act was passed by the Dominion Parlia-
ment under the British North America Act, 1871, 34 and 35 Vic. c. 28, s. 4, which
provided that that Parliament might, from time to time, make laws for the adminis-
tration of peace, order, and good government, of any territory, not for the time being
included in any Province. In delivering the judgment of the Privy Council, Lord
Halsbury, L.C., said : —

" It appears to be suggested that any provision differing from the provisions wntc»
in this country have l)een made for administration, peace, order, and good go\<-i
cannot, as matters of law. be provisions for peace, order, and good govern n
the territories to which the statute relates ; and, further, that if a court of la«
come to the conclusion that a particular enactment was not calculated as am
fact and policy to secure peace, order, and good government, that they would In; t: ^
to regard any statute directed to these objects, but which a court should think likely i<'
fail of that effect, as ultra vires and beyond the competency of the Dominion Parlinnn'n'
to enact. Their lordships are of opinion that there is not the least colour f'''
contention. The words of the statute are apt to authorize the utmost disci
enactment for the attainment of the objects pointed to. They are words under »"' ^
the widest departure from criminal procedure, as it is known and practised m thi-

5162.1

POWERS OF THE PARLIAMENT. 515

,-ountrv, have been aurhorized in Her Majesty's Indian Empire. Forms of procedure
anknown to the English common law have there been established and acted upon, and
;o throw the least doubt upon the validity of powers conveyed by those words would
be of widely mischievous consequence." (10 App. Ca. 678, 1885.)

51. (i.) Trade and commerce^^- with other countries, and
amonor the States^^ :

UsiTKD States. — To regulate commerce with foreign nations and among the several States and
with the Indian tribes.— Const. Art. I. sec. 8, subs. 2.

Canada. — The Regulation of trade and commerce.— B.N.A. Act, s. 91-2.

Historical Note. — Earl Grey's Committee of the Privy Council in 1849 proposed
I o give the General Assembly power with respect to " The imposition of dues or other
iharges on shipping in every port or harbour" (p. 85, supra). Wentworth's Constitn-
iional Committee- in 185.3 specified "The coasting trade;" and the Bill attached to
jVentworth's memorial in 1857 specified " Navigation of connecting rivers." (Pp.91,
1 4, supra.)

\ The sub-clause in the Commonwealth Bill of 1891 was worded " The regulation of
irade and commerce with other countries, and among the several States." In Com-

Iiittee, the questions of railway gauges and railway tariffs were discussed. (Conv.
'eb., ISyd., 1891, pp. 662-70.) The same words were adopted at the Adelaide session,
!i97. At the Sydney session, the liquor question was discussed (see Notes, sec. 11.3).
Jonv. Deb., Syd., 1897, pp. 1037-65.) At the Melbourne session, after the second
port, the river question was discussed (see Notes, sec. 1(K)). (Conv. Deb., Melb.,
). 1947-9<J.) After the fourth report, the words "the regulation of," and the word
several," were omitted.

§ 162 "Trade and Commerce."

Preliminary Definition. — Trade means the act or business of exchanging com-
jdities by barter, or by buying and selling for monej' ; commerce ; traffic ; barter.
I comprehends every species of exchange or dealing, either in the produce of land, in
1 .nufactures, in bills, or inmonej-, but it is chiefly used to denote the barter or pnr-
<«e and sale of goods, wares, and merchandise, either by wholesale or retail.
( ebster's Internat. Diet. ) Commerce means the exchange or buying and selling of
t nmodities ; especially the exchange of merchandise on a large scale between different
ices or communities; extended trade or traffic. (Webster's Internat. Diet.) The
cJTts of the United States have, in a series of decisions, defined commerce to be both
M^rcourse and traffic, and the regulation of commerce to be the prescribing of the rules
lijwhich intercourse and traffic shall be governed. (Gloucester Ferry Co. v. Pennsyl-
^ia, 114 U.S. 196.) The object of investing the Federal Parliament with the power
t4leal with trade and commerce, was to secure uniform legislation, where such uni-
•Qnity is practicable, against conflicting State legislation. (Western Union Telegraph
Q t>. Pendleton, 122 U.S. 347.) The object is to secure uniformity against discrimi-
B»ng State legislation. (Welton ». Missouri, 91 U.S. 275.) Commerce includes all
wjmercial traffic and intercourse. (Gibbons v. Ogden. 9 Wheat. 1 ; The Daniel Ball,
•(jVall. 557.) Sale is an ingredient of Commerce. (Brown v. Maryland, 12 Wheat.
«1; Leisy r. Hardin, 135 U.S 100.) It means intercourse for the purpose of trade of

(escriptions. (Corfield v. Coryell, 4 Wash. 371.) It comprehends everything that
wjrown, produced, or manufactured. (Welton r. Missouri, ^iipra.) It extends to

ona who conduct it as well as the means and instrumentalities used. (Cooley v.
*Q Wardens, 12 How. 299.) It includes vessels, railways, and other conveyances
in the transport of merchantable goods, as well as the goods themselves. (The
Wilson V. United States, 1 Brock. 423. ) It embraces navigation and shipping.

516 COMMENTARIES ON THE CONSTITUTION [See. 51-1.

(Cooley V. Port Wardens, supra) ; including free navigation of the navigable waters of
the several States. (Corfield v. Coryell, supra.^ It covers the right to improve navig-
able waters (South Carolina v. Georgia, 93 U.S. 4) ; and to remove nuisances and ob-
structions interfering with navigation. (Millers. Mayor of New York, 109 U.S. 385.)
It embraces railways, highways, and navigable waters along and over which commerce
flows. ( Willson V. Blackbird Creek Marsh Co. , 2 Pet. 245. ) It includes the freights
and fares charged for transport. (State Freight Tax Cases, 15 Wall 232.) It includes
passengers. (Passenger Cases, 7 How. 283.) Bills of exchange are instruments of
commerce. (Nathan v. Louisiana, 8 How. 73.) Sending a telegraph message is com-
merce. (Western Union Telegraph Co. v. Alabama, 132 U.S. 472.) The power to
regulate commerce is held in the United States to imply the power to construct rail-
ways, to promote and carry commerce. (California v. Central Pacific R. Co., 127
U.S. 1. See cases collected, Prentice and Egan's Commerce Clause of the Federal Con-
stitution, U.S. [1898], p. 43.)

The power of the Congress of the United States is "to regulate trade and com-
merce." The power of the Parliament of Canada extends to " the regulation of trade and
commerce." In this Constitution the words " the regulation of " have been omitted, and
the Federal Parliament has been given power to make laws "in respect of trade and
commerce." It has been held by the Privy Council that the power of the Parliament of
Canada to regulate trade does not imply the power to prohibit trade. (Att.-Gen. for
Ontario v. Att.-Gen. for Canada [1896], App. Ca. 363 ; and see note, § 163 infra, " Does
Regulation Include Prohibition?"; The omission of the words " the regulation of" can
certainly not be held to narrow the scope of the power, and may perhaps in some degree
extend it.

Aids to the Commerce Power. — There are several important sections in Chap-
ter IV. of this Constitution, which strongly re-enforce the grant of power over com-
merce contained in this sub-section. By section 98 the power of the Parliament to make
laws with respect to trade and commerce extends to navigation and shipping, and to
railways the property of any State. By section 101 the Federal Parliament is autho-
rized to appoint an Inter-State Commission, with such powers of adjudication and
administration as the Parliament deems necessary for the execution and maintenance,
within the Commonwealth, of the provisions of this Constitution relating to trade and
commerce, and of all laws made thereunder. By section 102 the Parliament may,
by any law with respect to trade or commerce, forbid, as to railways, any preference
or discrimination by any State, or by any authority constituted under a State, if such
preference or discrimination is undue and unreasonable, or unjust to any State.

Limits of the Commerce Power. — The Federal power over commerce is not
absolute or universal or unrestricted ; it is subject to certain limitations and proiiibitions,
which will be found enumerated in the next note.

§ 163. *' With Other Countries and Among the States."

LiMiT.s OF THE COMMERCE PovvER. — The power of the Federal Parliament to legis-
late concerning trade and commerce, whilst unbounded as regards the subject matter, >«
limited as regards its area and operation. Unlike the Parliament of Canada, whose
commercial power is expressed by the words " trade and commerce," without qualifica-
tion, the Parliament of the Commonwealth, like the Congress of the United States, can
only deal with trade and commerce "with other countries and among the States.' !• i
therefore embraces inter-state trade and commerce, and foreign trade and commerce,
but it cannot invade the domain occupied by the internal trade and connnerce of a Stale-
Commerce among the States is traffic, transportation and intercourse, between two
points situated in different States. (Wabash, St. Louis and Pacific R. Co. v. Illinois,
118 U.S. 557.) Commerce among the States is commerce which begins in one State and
ends in other, and it may pass through one or many States in its operation. (Gibbons ,
V. Ogden, 9 Wheat. 1.) Freight carried from points without a State to points wiUiin

§ 163.] POWERS OF THE PARLIAMENT. 517

that State, or fice versa, is as much commerce among the several States as is freight
taken up at points without the State and carried across it to points in other States.
(Fargo V. Michigan, 121 U.S. 230.) The regulation of inter-state and foreign commerce
is vested in the Federal Parliament, both as against the States and as against the other
departments of the Federal Government. (Robbins v. Shelby Taxing District, 120 U.S.
489. See also Xotes, § 427, infra.)

In addition to the constitutional limitations of the Federal power over commerce,
expressed by the words "with other countries and among the States," the Federal
power is subject to several other limitations and prohibitions. By section 92, trade,
commerce, and intercourse among the States become absolutely free on the imposition of
uniform duties of customs ; so that the Federal Parliament, whilst it may assist and
facilitate inter-state freetrade, is disabled from interfering with, or impairing the rule
of, inter-state commercial freedom. By section 99 the Commonwealth is prohibited
from giving preference to one State over another State, by any regulation of trade,
conimerce, or revenue.

CoxTROL OF Domestic Commerce of States. — The control of the internal trade
and commerce, which begins and ends in a State, and which does not cross its limits, is
reserved exclusively to the State ; it is beyond Federal control, and the right of
regulating it, in each State, belongs to the State alone. (License Cases, 5 How. 504.)
To this exclusive reservation of power over domestic trade and commerce of the States
there is one notable exception ; they cannot impose duties of excise on commodities
produced or manufactured within their borders ; the right of imposing duties of excise
is exclusively vested in the Federal Parliament. (See sec. 90.)

Commerce Further Discussed. — Commerce is said to be the interchange of goods
between nations or individuals, and transportation is the means by which it is carried
on. There could be no commerce without transportation. (Philadelphia Steamship Co.
V. Pennsylvania, 122 U.S. 326.) Actual transportation is the characteristic of inter-state
and foreign commerce. The Federal authority over commerce extends to places, such as
ports and harbours, in which vessels receive and discharge their frieght ; to means and
instrumentalities b}- which conimerce is transported, such as ships and railways, and to
the subjects of commercial intercourse such as commodities. (Von Hoist, Const. Law,
pp. 144-146.)

Transportation". — Federal control over the transportatiou of commerce embraces
every agency employed in the movement of commerce, by land or by water, such as
roads, stage coaches, railways, bridges, ships, navigable waters, ports and harbours All
these are means or instruments by or through which the subjects of commerce are trans-
ferred, in order to facilitate exchange and intercourse. A ship is not commerce, but it is
ane of the chief means by which commerce is conducted. A railroad is not commerce,
3at it is one of the most important agencies by which commerce is transported. Tele-
graphs and telephones are instrument.= of commerce. Foreign or inter-state bills of
pxchange are instruments of commerce. (Nathan v. Louisiana, 8 How. 73.) The Federal
patrol over commerce necessarily implies control of the means and instrumentalities of
lommerce. Accordingly it has been decided in the United States that the Federal power
-T commerce give the Federal legislature authority —

j To establish or authorize the establishment of a bridge which obstructs the

navigation of a river, or to order the removal of such a bridge, if its re-

I moval is necessarj' for the preservation of freedom of commerce.

(Pennsylvania v. Wheeling Bridge Co., IS How. 421 ; The Clinton
Bridge, 10 Wall. 454 ; Miller v. Mayor of Xew York, 109 U.S. 385 ;
Bridge Co. v. United States, 105 U.S. 470.)
To regulate boats carrying inter-state freight and passengers between tw»
points within the same State. {The Daniel Ball, 10 Wall. 557.)

518 COMMENTARIES ON THE CONSTITUTFON. [Sec. 61-L

To regulate the liability, or immunity from liability, for accidents, of the owners
of boats, plying the high seas between two points in the same State,
(Lord V. Steamship Co., 102 U.S. 541.)
To improve the navigation of ports, harbours, and rivers. (Wisconsin v, Duluth,

96 U.S. 379.)
To establish railroads in order to promote intcr-state commerce. (California v.

Central Pacific R. Co , 127 U.S. 1.)
To establish telegraph companies authorized to carry on inter-state telegraphic
business. (Pensacola Telegraph Co. v. Western Union Tel. Co., 96 U.S.
1 ; Western Union Telegraph Co. v. Alabama, 132 U.S. 472.)
To regulate liens on vessels. (White's Bank v. Smith, 7 Wall. 646.)
To grant corporations carrying on inter-state trade the right of eminent domain
through a State. (Winconsin v. Duluth, 96 U.S. 379.)
Travel. — The movement and personal intercourse of individuals engaged iu com-
merce, or entitled to be so engaged, is a branch of commerce. The arrival and departure
of passengers from one State to another, and the embarkation and disembarkation of
passengers by sea, is also a branch of commerce. (Passenger Cases, 7 How. 283 ; Welton
V. Missouri, 91 U.S. 275 ; Mobile v. Kimball, 102 U.S. 691.)

The Subjects of Commerce. — Commodities, ordinarily intended and fit to be
exchanged, are the usual subjects of commerce. The question whether an article is or is
not a subject of commerce has to be determined by the usages of the commercial world ;
it does not depend upon the declaration of any State. (Bowman v. Chicago, &c., R. Co.
125 U S. 465 ; Leisy v. Hardin, 135 U.S. 100.) Passengers from one State to another,
or from foreign States to federal jurisdiction, are subjects of the commerce power.

What are not Subjects of Commerce. —All commodities are not alwa)'8 the
subjects of commerce ; they, at certain stages, may lose that quality. Of course land,
not being transportable, could never become the subject of commerce. At the same
time certain things, though capable of being transported and exchanged, do not corae
within the true definition of commerce. Thus meat, at one time, may be a fit article of
commerce ; if it becomes putrid it ceases to be merchantable ; it loses its commercial
quality and passes beyond the domain of the commercial power. Obscene books and
noxious drugs, though capable of being exchanged, are not subjects of commerce.
(Preston w. Finley, 72 Fed Rep. 850.) Indecent publications and articles may be
excluded from Federal mails by Federal authority, and their transportation may be
forbidden either by Federal or State authority. The maxim is that there can be no
flonnnerce in disease, pestilence, crime, pauperism and immorality. (Per Chief Justice
Taney in License Cases [liquor], 5 How. 585 ; Railroad Co. v. Huseu, 95 U.S. 46S.)
Passengers, goods, or animals infected with disease, and passengers who are known to be
criminals, paupers, idiots, lunatics, or persons likely to become a public charge on a
State, are not subjects of commerce ; hence they may be excluded from a State by State
legislation in the exercise of its reserved police power. (See authorities collectc«i,
Prentice and Egan, Commerce Clause, p. 5b.) As a further illustration, it may >)e
mentioned that a corpse is not property, and is not capable of being a legitimate subject
of commerce. [Re Wong Yung Quy, 6 Sawj^ 442.) Banks and insurance companies
are not commercial institutions. (See Federal Commerce.)

Proddction and Manufacture. — The growth, production and manufacture of
commodities, and their preparation for transit, do not constitute commerce. Commerf*
only begins where manufacture and production end. (Kidd v. Pearson, 128 U.S. I)
The mere fact that commodities have been manufactured, and are intended for other
States or countries, does not bring them within federal protection and control.
(Prentice and Egan, Commerce Clause, p. 55. ) Hence a State nia^' forbid the manufa*'
ture of commodities such as intoxicating liquors and oleomargarine, provided that svch
prohibition is not in conflict with the exercise of any other federal power, such as a 1»*
offering bounties for production or export. (See note, § 456.)

f 163.] POWERS OF THE PARLIAMENT. 519

OccPPATioys NOT wiTHrs Federai. Coktrol. — It has been cJecided in the United
States that the following occupations do not come within federal commerce : the business
of a building and loan association, loaning money, dealing in foreign lands, conducting a
manufacturing establishment in another State, mining, practicing medicine in connection
with the sale of imported drugs.

When Federal Control ovt.k Commerce Begins. — Commerce does not come
within Federal protection or control until its transportation from one State to another,
or from a State to a foreign coimtrj', has begun. Even preparation for exportation is
not sufficient. The deposit of logs in a river running within one State, in order to ship
them into another State, does not mark, the beginning of Federal jurisdiction. (Coe v.
I Errol, 116 U.S. 517 ; Pace r. Burgess, 92 U.S. 372.) Other cases seem to suggest that
I inter-state commerce begins with negotiations and contracts looking to transportation
I m ong the States (Walling r. Michigan, 116 U.S. 446; Robbins v. Shelby Taxing
; District, 120 U.S. 489.) When the products of the farm or the forest are collected and
jbronght in from the surrounding country to a town or station serving as an entrepot for
.that particular region, whether on a river or a line of railroad, such products are not yet
(exports, nor are they in process of exportation, nor is exportation begun until they are
jcommitted to the common carrier for transportation out of the State to the State of their
idestination, or have started on their ultimate passage to that State. (Per Mr. Justice
[Bradley in Coe v. Errol, 116 U.S. 517 ; see, however, note, § 427 infra.)

Duration of Feder.\l Control. — As long as the goods are in tramntu they remain
he subjects of Federal commerce. (The Daniel Ball, 10 Wall. 557.) A transhipment of
reight which has once started upon its passage to another State does not break up the
carriage so as to bring it within the control of a single State.

Interruption of Transit. — Goods and passengers in course of transportation from

•ne State to another do not lose their inter-state character by a temporary stoppage in

n intermediate State. Having once startetl on their passage from a State to a State,

hey do not break their carriage by a transhipment in an intermediate State, so as to

ring them within the taxing power of that State. {The Daniel Ball, 10 Wall. 557.)

Vhere coal was shipped in Pennsylvania by a company to its agents in New Jersey, in

.'hich State it was assorted and reshipped to Xew York as advice of sales was received,

was held that the temporary delay in New Jersey had not terminated its transit so as

3 subject it to State taxation in New Jersey. (State r. P^ngle, 34 New Jers. L. 435.)

n Kelley r. Rhoads (51 Pac. Rep. [Wyo.] 593), the validity of a tax collected by the

tate of Wyoming, on a flock of sheep which was being driven from Utah through

v'yoming to Nebraska, was questioned. The court recognized the principle that " no

kX could be laid upon property in transit from one State to another, but, if the sheep

ere brought into the State to find grazing grounds, inter-state transportation ceased

hen the grazing grounds were found. The question upon which the validity of the

X depended was, therefore, a question of purpose — whether the grazing was incidental

the transportation, or whether the transportation was incidental to the grazing. It

not true that every time a person drives his herds into a State, intending, at some

ture period, to pass from it into another State, his cattle are wholly beyond State

risdiction. It would be possible under such a rule, by selecting a circuitous route,

avoid taxation upon grazing animals." (Prentice and Egan, Commerce Clause, p. &4.^

In considering the question of situ^ in such cases, it is necessary to look to the course

d method of travel, the character of the live-stock and of the territory grazed upon,

e time employed, possibly the time of year, and all other considerations which would

row light upon the purpose of the owner ; and where, upon such examination, it is

• md that property is kept within the State for some other purpose than that of

■nsportation, the original movement must be considered as abandoned." {Id.)

The End of Transit. — Goods and passengers, subjects of Federal commerce, having
«3e started on their passage, remain subject to Federal control and entitled to Federal
] Jtection until the end of the transit, and until they are lost and intermingled in the

520 COMMENTARIES ON THE CONSTITUTION. [Sec.5l-L

general mass of property and people of the State in which they arrive. ( Passenger Cases,
7 How. 405; Head Money Cases, 112 U.S. 580.) Some embarrassment has been ex-
perienced in determining the exact point of time and place at which this comniinghng
is accomplished, when Federal control ends and when municipal control begins. In the
great case of Brown ?\ Maryland, the Court referred to the difficulty of distinguishing
between the restriction placed upon the power of the States to lay taxes on imports,
and then- acknowledged power to tax persons and property within their jurisdiction.
It was observed that the two, " though quite distinguishable when they do not approach
each other, may yet, like the intervening colours between white and black, approach sa
nearly as to perplex the understanding, as colours perplex the vision in marking the
distinction between them ; yet the distinction exists, and it must be marked as the eases
arise." The Court, after observing that it might be premature to state any rule as being
universal in its application, held that " when the importer has so acted upon the thing
imported that it has become incorporated and mixed up with the mass of property in the
country, it has perhaps lost its distinctive character as an import, and has become subject
to the taxing power of the State ; but, while remaining the property of the importer in his
warehoiise, in the original form and package in which it was imported, the tax upon it
is too plainly a duty on imports to escape the prohibition in the Constitution." (Per
Marshall, C. J., in Brown v. Maryland, 12 Wheat. 419, Boyd Const. Cases, p. 197.)

In delivering the judgment of the Court in Welton v. Missouri, 91 U.S. 275, Mr.
Justice Field, referring to this judgment, said : —

" Following the guarded language of the Court in that case, we observe here, as
was observed there, that it would be premature to state any rule which would be
universal in its application to determine when the commercial power of the Federal
Government over a commodity has ceased, and the power of the State has conunenced
It is sufficient to hold now that the commercial power continues until the commodity
has ceased to be the subject of discriminating legislation by reason of its foreign
character. Tliat power protects it, even after it has entered the State, from any
burdens imposed by reason of its foreign origin."

Navigation, Shipping and Katlways. — The power of the Federal Parliament to
make laws with respect to trade and commerce extends to navigation and shipping and
to railways, the property of any State. See section 98.

Internal Improvements. — The power over commerce carries with it the power to
authorize internal improvements necessary for the promotion and advancement of com-
merce. For this purpose the Federal legislature may make surveys of coasts, rivers,
harbours, and highways, and may construct works tending to increase the facilities for
transportation by sea and by land ; may construct bridges over navigable waters ; may
clear and keep clear navigable streams ; may remove wrecks from rivers and harbours.
So liberal a construction has this power received in the United States, that it has been
held sufficient to authorize the incorporation of i^ailway and highway companies, ha\nng
a right to engage in inter-state commerce, and to compulsorilj' acquire private pro-
perty within the States for that purpose. (Cherokee Nation v. South Kansas Railway
Co., 135 U.S. 641 ; California v. Central Pacific R. Co., 127 U.S. 1.)

Freights and Fakes. — The States may regulate freights and fares charged for
domestic transportation, but they cannot regulate inter-state freights and fares.
(Wabash Railway Co. v. Illinois, 118 U.S. 557; Smyth v. Ames, 169 U.S. 466.) The
question was for a considerable time discussed in America, whether the mere grant ol
power to regulate commerce conferred on the Federal legislature authority to fix the
rates for inter-state carriage. It was admitted that Congress had power to prevent
unjust discriminations in inter-state transportation, and that it could make legislative
provision enabling those having just cause of complaint to bring actions at law tore
cover unreasonable charges. Hence it was argued that, if Congress couhl prohibit un
reasonable charges, it impliedly had the power to determine what charges should
deemed reasonable. (Prentice and Egan, Commerce Clause, p. 287.) If '-''*-' ^^*^^
were deprived of jurisdiction to settle freights and fares in inter-state traffic, it wa»

\ 163.]

POWERS OF THE PARLIAMENT. 521

reasoned that the power must be lodged in the Federal legislature. It is now admitted
;hat Congress has plenary power to regulate the rates of inter-state and foreign com-
nerce. (Covington and Cincinnati Bridge Co. v. Kentucky, 154 U.S. 204; New York
Board of Trade w. Pennsylvania R. Co., 3 Inter-State Com. Rep. 417; Kauflftnan
Milling Co. v. Missouri Pacitic Railroad Co., 3 Inter-State Com. Rep. 400.)

I.ntek-State Commerce Commissiox. — The Constitution of the United States
K>ntaius no clause authorizing Congress to appoint an Inter-State Commerce Commission;
)ut such a Commission has been authorized and appointed under and by virtue of the
oower vested in Congress to regulate commerce. This is a striking illustration of the
.astness and elasticity of the commerce power. The first Inter State Commerce Act was
massed on 4th Feb., 1887 ; it was amended on 2nd March, 1889 ; again amended on 10th
•"eb., 1891, and finally on 11th Feb., 1893. The general outlines of this legislation and
lie principles deducible therefrom will be found discussed in Inter-State Com. Commission
. Baltimore and Ohio Railroad Co.. 1S92, 145 U.S. 263 ; Inter-State C. C. r. Brimson,
894, 154 U.S. 447 1 Inter-State C. C. v. Alabama Midland Railway Co., 1896, 5 Inter-
tate Com. Rep. 655 ; Inter-State C. C. v. Alabama Midland Railway Co., 1897, 168
r.S. 144. (See Notes, sees. 101, 102.)

Le-iding Americax Commerce Cases. — A review in their chronological sequence of
!)me of the leading cases decided by the Supreme Court of the United States, under the
iommerce Clause of that Constitution, and a reference to the dominating principles
jhich run through them, will serve as an introduction to the study of the Commerce
jlause of the Constitution of the Commonwealth. Among those decisions some will
ppear to be inconsistent with others. The explanation is that the current of legal
instruction has not been, at all times, along and within the same lines of progress ; its
|urse has been, at certain stages, influenced by difiFerent principles of interpretation,
uanges in the personnel of the Court, the growth of new commercial interests conflicting
ith old ones, the expansion of commerce simultaneously with the growth of the nation,

1i determination of the State rights party, at the period of Federal history preceding
> Civil War, to enforce their \'iews in favour of State sovereignty, the ultimate over-
•ow of that party and its dangerous doctrines, the progress of the nation and the
i| ional idea gradually overshadowing the idea of State supremacy, were circumstances
Mich occasionally and naturally foimd expression in the, at times, varying and
a|)arently irreconcilable judgments of the Supreme tribunal.

J Gibbons V. Ogden, 9 Wheat 1 (1S24)- — This was the first great case decided under the

Ciimerce Clause of the United States. It stands like a high land-mark in the

-Utional history of that country. The facts were few and brief. The legislature

State of New York gave to Robert Livingstone and Robert Fulton the exclusive

to navigate all waters within the jurisdiction of the State with vessels propelled

•am. Ogden acquired the rights of Livingstone and Fulton. Gibbons, having

•id a license to run a steam-boat under the Acts of Congress regulating the coasting

na\-igated the Bay of New York with a steamer between New York city and

■eth Port in New Jersey. Ogden commenced a suit against Gibbons in the New

L'ourts in orfler to restrain him from navigating those waters, in breach of his

-ive right under the laws of the State. The State Courts held that the statute of

\ork was valid, and granted an injunction restraining Gibbons. Gibbons then

lud to the Supreme Court of the United States, his contention, as presented by his

1, Daniel Webster, being that the New York statute contravened the clause of the

tution conferring upon Congress the power to regulate commerce among the States,

aat it was therefore void.

he judgment of the Court was delivered by Chief Justic-e Marshall, the first great

clM(pioD and interpreter of the Constitution. That judgment has been described by

'tent authorities as a master-piece of reasoning and a monument of learning, well

y of the momentous issue involved. The following passages from this historical

iii<l|ient will be read with interest :—

522 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-i.

"The subject to be regulated is commerce; and our Constitution being, as was
aptly said at the bar, one of enumeration and not of definition, to ascertain the extent
of the power it becomes necessary to settle the meaning of the word. The counsel for
the appellee would limit it to traffic, to buying and selling, or the interchange of
commodities, and do not admit that it comprehends navigation. This would restrict a
general term, applicable to many objects, to one of its significations. Commerce,
undoubtedly, is traffic, but it is something more : it is intercourse. It describes the
commercial intercourse between nations and parts of nations, in all its branches, and is
regulated by prescribing rules for carrj'ing on that intercourse. The mind can scarcely
conceive a system for regulating commerce between nations, which shall exclude all laws
concerning navigation, which shall be silent on the admission of the vessels of the one
nation into the ports of the other, and be confined to prescribing rules for the conduct of
individuals, in the actual employment of buying and selling or of barter.

'* If commerce does not include navigation, the government of the Union has no
direct power over that subject, and can make no law prescribing what shall constitute
American vessels, or requiring that thej' shall be navigated by American .seamen. Yet
this power has been exercised from the commencement of the government, has been
exercised with the consent of all, and has been understood by all to be a commercial
regulation. All America understands, and has uniformly understood, the word
' commerce' to comprehend navigation. It was so understood and must have been so
understood when the Constitution was framed. The power over commerce, including
navigation, was one of the primary objects for which the people of America adopted
their government, and must have been contemplated in forming it. The Convention
must have used the word in that sense, because all have understood it in that sense, and
the attempt to restrict it comes too late.

" If the opinion that ' commerce,' as the word is used in the Constitution, compre-
hends navigation also, requires anj' additional confirmation, that additional contirmation
is, we think, furnished by the words of the instrument itself. It is a rule of construction
acknowledged by all, that the exceptions from a power mark its extent ; for it would be
absurd, as well as useless, to except from a granted power that whicli was not granted—
that which the words of the grant could not comprehend. If, then, there are in the
constitution plain exceptions from the power over navigation, plain inhibitions to the
exercise of that power in a particular waj', it is a proof that those who made these
exceptions, and prescribed these inhibitions, understood the power to which they applied |
as being granted." (9 Wheat, pp. 189-191.) j

"To what commerce does this power extend? The Constitution informs us, to [
commerce ' with foreign nations, and among the several States, and with the Indian ^
tribes.' It has, we believe, been universally admitted tliat these words coniprehemi
every species of commercial intercourse between the United States and foreign nation*.
No sort of trade can be carried on between this country and any other, to which tbi«
power does not extend. It has been trul}- said that commerce, as the word is used in th<"
Constitution, is a unit, every part of which is indicated by the term. If this be tin
admitted meaning of the word, in its application to foreign nations, it mnst carry ttn-
same meaning throughout the sentence, and remain a unit, unless there be some pl«i"
intelligible cause which alters it." Id., p. 193.

*' We are now arrived at the inquiry — what is this power? It is the power tc
regulate ; that is, to prescribe the rule by which commerce is to be governe<l. I"'"
power, like all others vested in Congress, is complete in itself, may be exercised to i ^
utmost extent, and acknowledges no limitations other than are prescriljedin the (.<>"
stitution. These are expressed in plain terms, and do not affect the questions i»d"
arise in this case, or which have been discussed at the bar. If, as has always x''
understootl, the sovereignty of Congress, though limited to specified objects,
plenary as to those objects, the power over commerce with foreign nations, and ani"
the several States, is vested in Congress as absolutely as it would be in a single go»("'' '

03.]

POWERS OF THE PARLIAMENT. 523

nient. having in its Constitution the same restrictions on the exercise of the power as
Are fqand in the Constitution of the United States. The wisdom and the discretion of
Congress, their identity with the people, and the influence which their constituents
possess at elections, are, in this, as in many other instances, as that, for example, of de-
claring war, the sole restraints on which they have relied, to secure them from its abuse.
Thev are the restraints on which the people must often rely solely, in all representative
emments.

" The power of Congress, then, comprehends navigation within the limits of every
;e in the Union, so far as that navigation may be, in any manner, connected
^^ ith ' commerce with foreign nations, or among the several States, or with the Indian
tribes.' It may, of consequence, pass the jurisdictional line of Xew York, and act upon
the very waters to which the prohibition now under consideration applies." {Id.
pp. 196-7.)

Applying the principles here discussed to the facts of the case, the Chief Justice de-
.--d the following propositions : —
1. That the law of New York giving the exclusive right of navigation to Living-
tone and Fulton and their assigns was in collision with the Federal law regulating the
j-oostal trade ; that the Federal law on this subject was the supreme law ; that the State
jaws must yield to that supremacy, even though enacted in pursuance of powers reserved

0 the State. (9 Wheat. 210.)

1 2. That a coasting license under an Act of Congress passed for the regulation of the
I'^sting trade gave a legal permission to carry on that trade. (9 Wheat. 212.)

3. That the Act of Congress regulating the coasting trade applied to steamers as
ell as to sailing ships. (9 Wheat. 219.)

This case did not decide that the mere grant to Congress, by the Constitution, of

16 power to regulate foreign and inter-state c-ommerce exlcnded ipso /aeto the States

om the exercise of a similar power. At the same time some of the reasoning

I the Chief Justice evidentlj' led to that conclusion, while Mr. Justice Johnson

■-? distinctly of that opinion. It did, however, expressly decide that the grant in

Constitution, coupled with Federal legislation in pursuance thereof, removed the

iject matter absolutely from the jurisdiction of the States. (Pomeroy, Constitutional

vw. 10th ed. p. 284.)

We have now to consider how far the principles affirmed in Gibbons r. Ogden

aid be applicable to the interpretation of the Australian Constitution. In order

'letermine this question, the power granted by sec 51 — i. must be read in

^junction with sees. 108-109, which, shortly summarized, provide that a State

)r, relating to any matter within the powers of the Federal Parliament, shall

^ itinoe in force in the State ; that until provision is made in that behalf by

i 5 Federal Parliament the Parliament of the State may alter or repeal any such laws ;

1 it when a law of a State is inconsistent with a law of the Commonwealth the latter

1 vails, and the former, to the extent of the inconsistency, becomes invalid. These

ases may be compared with Art. VI. sec. 2 of the Constitution of the United States,

;':h declares that the Constitution, and the laws of the United States made in pur-i

ace thereof, shall be the supreme law of the land. It seems clear, therefore, that\

aid a similar conflict arise in the Commonwealth between rights claimed under a ',

^ te law and rights claimed under a Federal law, the High Court would give a decision .

- ;lar to that rendered in Gibbons r. Ogden. This statement leaves out of considera-

^ the question discussed by Chief Justice ^farshall, but not necessarily decided,

*''ther the mere grant of power to Congress to regulate foreign and inter-state com-

Aoe iptojarto excluded the State legislatures from the exercise of a concurrent power,

-y in the absence Fedeial legislation. This point pervades the argument in most of

Ajiriean commerce cases, and it was not finally settled until the case of Cooley r. Port

•ydens, 12 How. 299, see infra. On account of the special provisions of sees. 90 and

524 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-r.

108 the question of exclusiveness or concurrency of the commerce power will not prove
such an embarrassing and perplexing problem, in the interpretation of the Constitution of
the Commonwealth, as it has been in the interpretation of the Constitution of the United
States. Section 108 is intended to confer on the Parliaments of the States the right
known in Federal jurisprudence as that of concurrent legislation ; that is, the right to
legislate on subjects transferred to the Federal Parliament, until the Federal Parliament
interferes, and deals with those subjects in a manner inconsistent with State laws. That
right of concurrent legislation, however, is expressly limited by sec. 90. By that section
the power of the Federal Parliament to impose duties of customs and of excise, and to
grant bounties, becomes exclusive on and after a certain event ; with reference therefore
to customs, excise, and bounties, State laws will be null and void absolutely on and after
the given event, irrespective of the question of consistency or inconsistency. But other
State laws relating to commerce will only be void to the extent of their inconsistency
either with the Constitution or with Federal laws made in pursuance thereof.

But sec. 108 will only enable the State Parliaments to deal with such a question as was
involved in Gibbons v. Ogden, until the Federal Parliament has legislated and authorized
others to use the navigable waters ; then the Federal license will override the previously
granted State monopoly.

Brown v. Maryland, 13 Wheat. 419 (1827). — The State of Maryland passed a statute
requiring every importer of foreign goods by bale or package, and every person selling
the same by the wholesale bale or package, to take out a license, for which a fee was
required ; in default of a license he was liable to a penalty. One Brown violated the
statute by importing foreign goods and selling them without a license. He was indicted
in the State courts, and he demurred to the indictment, contending that the State law
was contrary to the Constitution, and therefore null and void. The courts of Maryland
gave judgment against him, and he then appealed to the Supreme Coiirt of the United
States. The constitutionality of the State law was assailed on the grounds : — (1.) That it
contravened the clause in the Constitution forbidding States to lay duties on imports,
and (2) that it contravened the laws granting to Congress power of regulating foreign and
inter-state commerce. The judgment of the court was delivered by Chief Justice
Marshall. It was held that the State law was void on both grounds. The right to
import had already been granted by Congress, and that right, the Court said, involved a
right on the part of the importer to sell ; and any State law which imposed a tax
upon the exercise of that right was in collision with the Federal law, and therefore
invalid. It was also held that the State law was repugnant to that clause of the Consti-
tution which empowered Congress to regulate foreign and inter-state commerce. The
judgment then proceeded : —

"If this power reaches the interior of a State, and may be there exercised, it must
be capable of authorizing the sale of those articles which it introduces. Commerce is
intercourse ; one of its most ordinary ingredients is traffic. It is inconceivable that the
power to authorize this traffic, when given in the most comprehensive terms, with the
intent that its efficacy should be complete, should cease at the point where its continu-
ance is indispensable to its value. To what purpose should the power to allow importa-
tion be given, unaccompanied with the power to authorize a sale of the thing imported ?
Sale is the object of importation, and is an essential ingredient of that intercourse, of
which importation constitutes a part. It is as essential an ingreaient, as indispensable
\j to the existence of the entire thing, then, as importation itself. It must be considered
as a component part of the power to regulate commerce. Congress has a right, not only
to authorize importation, but to authorize the importer to sell. . . What would be
the language of a foreign government, which should be informed that its merchants,
after importing according to law, were forbidden to sell the merchandise imported ?
What answer would the United States give to the complaints and just reproaches to
which such an extraordinary- circumstance would expose them ? No apology could be
received or even offered. Such a state of things would break up commerce. It will not
meet this argument to say that tiiis state of things will never be produced, that the
good sense of the States is a sufficient security against it. The Constitution has not
confided this subject to that good sense. It is placed elsewhere. The question is,
Where does the power reside? not, how far will it probablj' be abused ? The power

5 163] POWERS OF THE PARLIAMENT. 525

claimed bj' the State is, in its nature, in conflict with that given to Congress ; and the
greater or less extent in which it may be exercised does not enter into the inquiry
concerning its existence. We think, then, that if the power to authorize a sale exists
in Congress, the conclusion that the right to seU is connected with the law permitting
importation, as an inseparable incident, is inevitable. If the principles we have stated
be correct, the result to which they conduct us cannot be mistaken. Any penalty
inflicted on the importer for selling the article, in his character of importer, must be in
opposition to the act of Congress which authorizes importation. Any chcirge on the
introduction and incorporation of the articles into and with the mass of property in the
country, must be hostile to the power given to Congress to regulate commerce, since an
essential part of that regulation, and principal object of it. is to prescribe the regular
means for accomplishing that introduction and incorporation." (Per Chief Justic-e
31arshaU in Brown r. Maryland, 12 Wheat, pp. 446-7.)

The principles afiirmed in Brown i*. Mar3'land would be sustained by the High A
Court in a similar case arising under the Constitution of the Commonwealth, by virtue I
■of the provision of sec. 90, subject, however, to sec. 113.

»r»ff«on V. Blackbird Creek Marsh Co., 2 Pel. 242 (18-29).— The Blackbird Creek
Marsh Co. was incorporated by a statute of Delaware, and it owned certain marsh land
Iwrdering on the Blackbird Creek, a small stream in which the tide ebbed and flowed from
the ocean. The company was authorized by the State to make a dam across the creek and
to embank the marsh, the object being to reclaim and improve the adjacent land. The
company constructed the dam, owing to which the naWgation of the stream was
obstructed. WUlson was the oinTier of a sloop licensed to trade by the law of the
United States. In order to navigate the stream he broke the dam, and the company
sued him to recover compensation for the destruction of the dam. The defendant
justified the trespass, contending that he had a right to na%ngate the creek, by ^-irtue of
his Federal license and enrolment ; that, the dam being an unlawful obstruction to his
right, he was entitled to remove t. The company demurred to this defence, and the
question was then raised as to the validitj' of the State statute. The courts of Delaware
sustained the statute and gave judgment against Willson, who then appealed to the
Supreme Court of the United States. The appeal was dismissed, the State statute being
held valid. The judgment of the Court was delivered by Chief Justice Marshall. In the
course of the judgment he said : —

" The act of assembly, by which the plaintiSs were authorized to construct their
dam. shows plainly that this is one of those man^- creeks passing through a deep, level
marsh adjoining the Delaware, up which the tide flows for some distance. The value of
the property on its banks must be enhanced by excluding the water from the marsh,
and the health of the inhabitants probably imprmed. Measures calculated to produce
these objects, provided they do not come into collision with the powers of the general
government, are undoubtedly within those which are reserved to the States. But the
measure authorized by this act stops a navigable creek, and must be supposed to abridge
the rights of those who have been accustomed to use it. But this abridgment, unless it
comes in conflict with the Constitution or a law of the United States, is an affair between
the government of Delaware and its citizens, of which the Court can take no cognizance.
The counsel for the plaintiff in error insist that it comes in conflict with the power of
the United States ' to regulate commerce with foreign nations and among the several
States.' If Congress had passed any act which bore upon the case : anj- act in execution
of the power to regulate commerce, the object of which was to control State legislation
over those small navigable creeks into which the tide flows, we should not feel much
difliculty in saying that a State law coming in conflict with such act Mould be void.
But Congress has passed no such act. The repugnancy of the law of Delaware to the
Constitution is placed entirely on its repugnancy to the power to regulate commerce
with foreign nations and among the several states; a power which has not been so exercised
as to affect the question. We do not think that the act empowering the Blackbird Creek
Marsh Company to place a dam across the creek can, under all the circumstances of the
case, be considered as repugnant to the power to regulate commerce in its dormant
state, or as being in conflict with any law passed on the subject." (2 Pet. pp. 251-3.)

The decision of the Court in the Blackbird Creek case, though often criticized as
being inconsistent with Gibbons r. Ogden and Brown r. Maryland, has never been over-
ruled, but has always been sustained. (Pound r. Turck, 95 U.S. 459 ; Hatch r. Willa-
mette Iron Bridge Co., 6 Fed. Rep. 326.) It is now considerwl that the true principle.

526 COMMENTARIES ON THE CONST! TUTIOK [Sec. 51^i.

by which the Blackl)ird Creek case can be reconciled with its two memorable prede-
cessors, is that the Delaware statute, by which the dam was authorized, was purely a
police regulation for the reclamation of the adjacent marshes, in the interests of public
health. This at any rate was the solution of the apparent conflict suggested in Penn-
sylvania V. The Wheeling Bridge Company (13 How. 566). A similar decision would,
no doubt, be given under the Constitution of the Commonwealth, especially in view of
sections 108 and 109.

iVew York v. Miln, 11 Pet. 102 (i5J7).— The State of Xew York passed a statute
providing that every master of a vessel arriving in the port of New York from another
State, or from a foreign country, should, within twenty-four hours, report to the local
authorities the name, age, and last place of settlement of every passenger ; in default
thereof he was liable to a penalty. Miln, the master of the ship Emily, omitted ta
give the required report and was sued for the penalty ; his defence was that the statute
of New York assumed to regulate commerce between New York and foreign countries,
and was therefore unconstitutional and void. The case came before the Supreme Court;
of the United States. It was twice argued ; after the first argument, and before judg-
ment was given, Chief Justice Marshall died, and was succeeded by Chief Justice Taney.
The case was then re-argued, and the judgment of the Court was delivered by Mr.
Justice Barbour. It was held that the New York statute was valid ; that it was not a-
regulation of commerce, but merely a police regulation. Mr. Justice Story dissented
from the judgment. He was of opinion that, though the New York statute might be a.
police regulation, it was certainly also a regulation of commei'ce ; that the power to
regulate commerce was exclusively vested in Congress ; that full power to regulate a-
particular subject implied the whole power and left no residuum ; that a grant of the
whole to one was incompatible with a grant of a part to the other ; and that the police
powers of the States could not be enforced by laws which trenched upon the exclusive
powers of Congress. This case is interesting as containing an authoritative definition of
the police powers of a State, as will be seen from the following extracts : —

" We shall not enter into any examination of the question whether the power to
regulate commerce be or be not exclusive of the States, because the opinion we have
formed renders it unnecessary. In other words, we are of opinion that the Act is not a.
regulation of commerce, but of police ; and that, being thus considered, it was passed in
the exercise of a power w hich rightfully belonged to the States. ... If , as we
think, it be a regulation, not of commerce, but police, then it is not taken from the
States. To decide this, let us examine its purpose, the end to be attained, and the
means of its attainment. It is apparent, from the whole scope of the law, that the
object of tlic legislature was to prevent New York from being burdened by aii influx of
persons brought thither in ships, either from foreign countries or from any other of the
States ; and for that purpose a report was required of the names, places of birth, &e., of all
passengers, that the necessary steps might be taken by the city authorities to prevent
them from becoming chargeable as paupers. Now, we hold that both the end and the
means here used are within the competency of the States. . . . We choose rather
to plant ourselves on what we consider impregnable positions. They are these : 1'hat a-
State has the same undeniable, unlimited jurisdiction over all persons and things within,
its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or
restrained by the Constitution of the United States. That, by virtue of this, it is not
only the right, but the bounden and solemn duty of a State, to advance the safety,
happiness, and prosperity of its people, and to provide for its general welfare, by any
and every act of legislation which it may deem to be conducive to these ends, where the
power over the particular subject, or the manner of its exercise, is not surrendered or
restrained in the manner just stated. That all those powers which relate to merely
municipal legislation, or what may, perhaps, more properly be called internal police,,
are not thus surrendered or restrained ; and that, consequently, in relation to these,
the authority of a State is complete, unqualified, and exclusive." (11 Pet. pp. 132-i;i9.>

The case of New York v. Miln was tlie first one in which an important judicial
decision was given in the direction of the recognition of State rights. It is said that the
judgment went far beyond the point which it Mas necessary to decide. Mi. Justice
Barbour enunciated, for the first time, the doctrine that tlie police power reserved to
the States was in itself a " complete, unqualified, and exclusive power," a doctrine

§ 163.] POWERS OF THE PARLIAMENT. 527

which was afterwards elaborated with dangerous persistency until it was finally destroyed
by the Civil War.

It is quite probable, however, that whilst neither the extreme doctrine of the
Federal exclusiveness of the commercial power contended for by Mr. Justice Story, nor
the extreme doctrine of the exclusiveness of the police power of the State advocated by
Mr. Justice Barbour, could be applied to the construction of the Constitution of the
Commonwealth, the decision itself in New \ ork v. Miln would be followed b}- the High
Court on the ground that the demand of information by the State authorities, as to the
name, age, and last place of settlement of those about to land and to bec-ome added to
the population of the State, would not interfere with that freedom of commerce and
intercourse required by sec. 92.

The License Case-i, 5 How. 504 (1847). — These were three cases known as Thurlow
V. Massachusetts, Fletcher v. Rhode Island, and Peirce r. New Hampshire. In each of
these cases a private individual was prosecute<l by a State for selling spir-ituous liquors
within the State without having a license as required by the law of the State. In each
case the validity of the law of the State was called in question, on the ground that it
was repugnant to the Commerce Clause of the Federal Constitution. In the Massa-
chusetts and Rhode Island cases the liquor sold was not imported by the defendant, but
had been bought by him from the original importer. The Supreme Court had no
difficulty in holding that those cases were distinguishable from Brown v. Maryland
inasmuch as the liquor had passed beyond the hands of the original importer, had become
a part of the general property of the State, and was therefore subject to the power of
the State to regulate purely internal commerce and to pass police laws. In the New-
Hampshire case, however, the defendant had bought a barrel of gin in Boston, in the
State of Massachusetts, and carried it coastwise to a port in New Hampshire, where he
sold it in its original package. A strong attempt was made to commit the court to the
theory that jurisdiction over commerce was, in all cases, concurrent in the nation and in
the States. It is absolute)}' impossible, however, to say what the court decided.
Although all the judges came Jo the same conclusion — that the State laws were valid —
hardly two, much less a majority, agreed in the rea.sons for their judgment, and the rules
of law applicable to the cases. (Pomeroy's Constitutional Law, 10th ed. pp. 293-4.)
Chief Justice Taney was of opinion that even in the New Hampshire case the facts were
different from those in Brown v. Maryland, the State statute in the latter case applying
to foreign goods, in respect to the importation of which Congress had fully legislated.
But Congress had not legislated in regard to goods carrietl from one State to another ;
the navigation laws did not apply to the goods which are transported, but only to the
vessels which transport ; the foreign importation statutes covered the introduction of
articles from abroad, but no corresponding statute applie<l to traffic among the States.
In the opinion of the Chief Justice, the question was therefore directly presented,
whether the mere gi-ant to Congress of power to regulate commerce was exclusive and
prohibitory upon the States, or whether it required a statute of the national legislature,
passed in pursuance to such grant, to oust the States of jurisdiction. He adopted the
latter of these views, and therefore held the law of New Hampshire valid. The case
which he principally relied upon, as confirmatory of his doctrines, was Willson v. Black-
bird Creek Marsh Co. (Pomeroy's Constitutional Law, 10th ed. pp. 294-5 )

Mr. Justice Woodbury took a middle course, and, for the first time in the history
of the court, formulated the modern rule. In several respects, he said, the power
granted is not in its nature more exclusive of action on the part of the States than are
other powers granted to Congress. So far as regards the uniformity of a regulation
reaching to all the States, the commercial power "must of course be exclusive," but in
many local matters it not only permits but requires the concurrent and auxiliary action
of the States. " There is much in connection with foreign commerce which is local
within each State, convenient for its regulation and useful to the public, to be acted on
by each till the power is abused or some course is taken by Congress conflicting with it.

528 COMMENTARIES ON THE CONSTITUTION^. [Sec. 61-i.

Such are the deposit of ballast in harbours, the extension of wharves into tide water,
the supervision of the anchorage of ships, the removal of obstructions, the allowance of
bridges with suitable draws, and various other matters that need not be enumerated,
beside the exercise of numerous police and health powers, which are also by many
■claimed upon different grounds." (Prentice and Egan, Commerce Clause, p. 24.)

Referring to this decision, Dr. Pomeroy saj's : — "In reviewing these extraordinary
License Cases, it is plain that the court did not overrule the former decisions of Gibbons
V. Ogden and Brown v. Maryland. On the other hand, it would appear that five of the
jxistices, Taney, Catron, Daniel, Nelson, and Woodbury, concurred in the proposition
that it requires, at least, a statute of Congress, passed in pursuance of the general
grant of power in the Constitution, to inhibit the State legislatures from enacting laws
which regulate commerce ; while two of the justices, McLean and Grier, did not adopt
this view. Two, Daniel and Woodbury, pushed their conclusions much further ; and
tM^o, Wayne and McKinley, were absent, or took no part in the decision. Whatever
rule, however, was established by this judgment, was entirely unsettled by the next
cases which came before the same high tribunal for adjudication." (Constitutional Law,
10th ed. pp. 296-7.)

How far are these cases applicable to the Constitution of the Commonwealth ? It
•appears that in the Massachusetts and Rhode Island cases the liquor had passed out of
the hands of the original importer ; it had consequently ceased to form a part of inter-
state commerce ; it had merged into and become a constituent of the general mass of
the internal commerce of a State. It was therefore liable to the local licensing laws of
the State ; and this would be so held under our Constitution. Such licensing laws
would not be contrary to section 92, which provides that commerce and intercourse
among the States shall be "absolutely free," because the liquor had passed beyond the
stage of inter-state commerce ; it had passed beyond Federal protection and control.
In point of fact it ceased to be a part of inter-state commerce immediately after the
first sale within the State. In the Kew Hampshire case, however, the facts were dif-
ferent. There Peirce had bought a barrel of gin in one State, Massachusetts, and im-
ported it into another State, New Hampshire, where he sold it in its original package
without a license, for wliich he was convicted. Now according to sec. 92 of our Con-
stitution, Peirce would have been entitled to demand the free admission of the barrel of
gin from one State into another, but the question then arises, what effect has sec. 11*^,
if any, in modifying sec. 92? Section 113 is as follows : —

"All fermented, distilled, or other intoxicating liquids passing into any State or
remaining therein for use, consumption, sale, or storage, shall be subject to the laws of
the State as if such liquids had been produced in the State."

These two sections 92 and 113 have to be read together. What is the meaning of
*' passing into a State ?" Will the doctrine of Peirce v. New Hampshire apply so as to
prohibit the first sale in the original package except in accordance with the licensing
laws of the State ? If that be so, and the goods cannot be sold without a license, how
will the commerce be " absolutely free " under sec. 92? These points require careful
consideration. Meanwhile we may add to this note respecting I'eirce v. New Hamp-
shire, that it was subsequently overruled in the case of Bowman v. Chicago R. Co.,
125 U.S. 465 ; Leisy v. Hardin, 135 U.S. 100. (See Note, § 456, m/Va.)

The Passenger Canes, 7 Sow. 28S (1849). — In these cases, Smith v. Turner from New
York, and Norris v. Boston from Massachusetts, the defendants were prosecuted for
breach of State laws. A statute of New York provided that the health officer of the
port should he entitled to receive from the master of every vessel arriving in port a cer-
tain sum for each steerage passenger brought to the port from another State, or from a
foreign country. This money, when collected, was applied to the support of a marine
hospital. Masters neglecting to pay the sum demanded in respect to each passenger
were liable to be prosecuted and fined. A similar statute was passed in Massachusetts.
The defence raised in ea,ch case was that the State statute was unconstitutional ; in

■§ 163.]

POWERS OF THE PARLIAMENT. 529

reply to which it was contended that the provisions of the Acts were merely rules of
internal police, and that the cases were identical in principle with New York v. Miln.
The Court distinguished the principles at issue from that aiiirmed in Xew York v. Miln.
The police regulation in that case did not interfere with commerce in any way. No duty
was laid, either upon the vessel or passengers ; nothing but a report was required
from the master of each vessel, and the decision was that every State had an un-
questionable right to keep a register of the names of persons who came within to reside
there temporarily or permanently. But in these cases the regulations imposed a tax or
-duty on the passengers, officers, and sailors, holding the master responsible for payment
of the amount at the end of the voyage, and necessarily before the passengers had set
their feet on land. The tax on each passenger, if in the discretion of the State legisla-
ture, might have been 5 dollars, or 10 dollars, or any other sum, amounting even to a
prohibition of the transportation of passengers. There was no doubt that the transporta-
tion of passengers was a branch of commerce, and that the duties charged by the local
regulations amounted to a tax on commercial intercourse. Except to guard its citizens
against diseases and paupers the Coiut held that the municipal power of the State could
not be exercised to prohibit the introduction of foreigners permitted to enter under the
authority of Congress. But in guarding the safety, the health, and the morals of its
citizens, a State was restricted to appropriate and constitutional means. The principles
affirmed in this case were (1) That when the Federal authority has, in the exercise of its
general power, passed a statute to regulate commerce, the States are absolutely prohibi-
ted from making any laws which will interfere with the legislation of the Federal
authority. (2) That persons, as well as goods, are subject to commercial laws. (3) That
the States, in adopting regulations of internal police, are not entitled to include in them
provisions conflicting with the commercial power. (4) That the commercial power and
the police power are not to be regarded as two equal and competing forces, but that in
case of conflict the commercial power prevails. The dissenting judges were of opinion
that the State laws could be sustained on the grounds of— (1) The general concurrent
power of the States ; (2) The authoritj- to pass police regulations ; (3) A denial that
persons can be the objects of commerce ; (4) The consequent result that Congress has
no authority to legislate respecting the importation of persons, that matter being left
exclusively to the States. (Pomeroj', Const. Law, 10th ed. p. "299.)

" This," says Dr. Pomeroy, "was the last great contest in the Supreme Court be-
tween the forces of national and of state sovereignty. The national idea was triumphant
through the steadiness of two southern members of the Court, Wajne of Georgia, and
Catron of Tennessee." (Constitutional Law. 10th ed. p. 299. See also Crandall v.
Nevada, 6 Wall. 35.)

Coolty V. Port Wardens, 12 How. 299 (1851) — The question raised in this case was
whether the States may pass laws establishing pilots, and prescribing the duties of
masters of vessels arriving in ports in respect to such pilots. This was an action to
recover half-pilotage fees, which the defendants had forced the plaintiff to pay. In
March, 1803, the legislature of Pennsylvania passed an Act to establish a Board of
Wardens for the Port of Philadelphia, and for the regulation of pilots and pilotages.
The scope of the Act was, as indicated by its title, to deal with the whole subject of the
pilotage of the port. The plaintiflF claimed to be exempted from payment of the sums of
money demanded under the State law, because the law contravened several provisions of
the Federal Constitution. In this celebrated case the question was again discussed as to
whether the Federal power over commerce was exclusively vested in Congress, or con-
currently in Congress and in the States. The constitutionality of the State pilot regula-
tions had been previously argued, but not decided. They could only be sustained on the
ground that the power to regulate commerce was c-oncurrent. But in the Passenger
Cases it had been shown to what a dangerous and chaotic state a concurrent system of
■commercial control would lead ; whilst on the other hand, to sustain the theory of
«xclusivenes8 would involve the declaration of the invalidity of pilot laws which bad
34

530 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-i.

remained unquestioned for over fifty years. A solution of the problem was found in th&
dictum first laid down by Mr. Justice Woodbury, in the License Cases, to the effect that
the commercial power was partly CKclusive and partly concurrent ; that in matters
admitting of uniformity of regulation and requiring national action the commercial
power was exclusive, but that in many local matters, admitting of a variety of treat-
ment, the concurrent action of the States was admissible. This principle was authorita-
tively adopted as the judgment of the Court in Cooley v. Port Wardens, and has now
become the well established rule of the Federal Courts. In delivering the judgment of
the Court, Mr. Justice Curtis said : —

"The diversities of opinion, therefore, which have existed on this subject, have
arisen from the different views taken of the natiire of this power. But when the nature-
of a power like this is spoken of, when it is said that the nature of the power require*
that it should be exercised exclusively by Congress, it must be intended to refer to the
subjects of that power, and to say they aie of such a nature as to require exclusive
legislation by Congress. Now, the power to regulate commerce embraces a vast field,
containing not only many, but exceedingly various subjects, quite unlike in their nature ;
some imperatively demanding a single uniform rule, operating equally on the commerce
of the United States in every port ; and some, like the subject now in question, as
imperatively demanding that diversity which alone can meet the local necessities of
navigation. Either absolutely to atfirm, or deny that the nature of this power requires-
exclusive legislation by Congress, is to lose sight of the nature of the subjects of this
power, and to assert concerning all of them what is really applicable but to a part."
(12 How. p. 319.)

" The States may establish port regulations, regulations of pilotage, may improve
their harbours and rivers, erect bridges and dams, and exercise many other local powers.
In the exercise of its proper authority, a State may enact laws providing for the
inspection of goods, to determine whether they are fit for commerce, and to protect the
citizens and the market from fraud. But in all such cases, as was said in Leisy v. Hardin,
though the States may exercise powers which may be said to partake of the nature of
the power granted to the general government, they are strictly not such, but are merely
local powers, which have full operation until circumscribed by the action of Congress in
effectuation of the general power. In matters admitting uniform regulation throughout
the country and affecting all the States, the inaction of Congress is to be taken as a
. declaration of its will that commerce shall be ' free and unrestricted,' so far only as-
^ concerns any general regulation by the States. It can hai'dly be considered that this
phrase means more than freedom from such regulations as admit of uniformity, for it is
only to this extent that the jurisdiction of Congress over* inter-state commerce is
exclusive of State regulation. On the other hand, in matters of local nature, such as
are auxiliary to commerce rather than a part of it, the inaction of Congress is to be
taken as an indication that for the time being, and until it sees fit to act, they may be
regulated by State authority. Since the decision of Cooley v. Port Wardens, the rule
therein laid down has. with one important exception which will be hereafter noticed,
been followed in every case in the Supreme Court upon this subject. It is perhaps the
most satisfactory solution which has ever been given of this vexed question, and may be
considered as expressing the final judgment of the Court. It is not eas\- at this time to
exaggerate the importance of the case by which this rule was established. It offered a
logical principle for the construction of the constitutional provision, such as no previous
case had offered. More than this, it marked, in 1851, the end of the struggle, lasting
more than thirty years, and which had been begun in Ogden v. Gibbons, in the New
York courts." (Prentice and tgan. Commerce Clause, pp. '27-9.)

The problem which caused such a long controversj' in the Supreme Court of the
United States, as to whether the power over commerce was exclusive or concurrent, or
partly exclusive and partly concurrent, should never arise or occasion any trouble in the
^ interpretation of the Constitution of the Commonwealth, in which two principles are
, / clearly and unmistakably established : that on and after the imposition of uniform
I duties of customs, the power of the Federal Parliament to impose duties of customs and
excise, and to grant bounties, becomes absolutely and irrevocably exclusive, and this is
(the limits of its exclusive power ; that as to other matters relating to commerce, the
'States will continue to exercise concurrent authority, and the State laws in respect to-
such matters will be perfectly valid, until laws inconsistent therewith are passed by the
Federal Parliament.

Pennnylvania v. Wheeling Bridge Co., 13 How. 51S (1851). — The defendant company
was incorporated by an Act of the legislature of Virginia, which authorized them to

§ 163.] POWERS OF THE PARLIAMENT. 531

eonstnict a suspension bridge across the river Ohio, at Wheeling. The bridge was
constructed, and hindered the passage of boats ascending and descending the river an
that point. Prior to this Obngress had recognized the Ohio as a navigable stream, and
a channel of commerce, but it had never authorized the erection of bridges at that
part of its course. The State of Pennsylvania brought a suit in the Supreme Court
against the company, praying that the bridge might be removed as a public nuisance.
On behalf of Pennsylvania it was argued that the legislature of Virginia could not con-
stitutionally authorize the erection of a bridge which obstructed free commerce on the
Ohio. The Court sustained this contention ; it was held that the power to regulate
commerce among the States extends to the navigable streams whei-eon that commerce
is carried ; that commerce includes navigation ; that Congress had recognized the Ohio
as a great navigable river, and the highway of an immense commerce ; that the bridge
interfered with such navigation ; that the Virginian statute authorizing the bridge was
therefore in conflict with the power granted to and exercised by Congress. (Pomeroy,
Const. Law, 10th ed. pp. 301-2.)

This case is especially interesting, owing to the development which followed. After
the judgment was given declaring the bridge a nuisance and ordering its removal.
Congress passed an Act legalizing the bridge as it then stood, and authorizing it to be
allowed to remain. Another suit was then brought by Pennsylvania against the Bridge
Company (IS How. 421), in which the question was raised whether this Act was with-
in the constitutional authority of Congress. The Supreme Court ruled that Congress,
having power to regulate commerce, could as legally obstruct commerce as free it from
obstruction - could as legally fetter it as liberate it ; and therefore that the Act was
within the Constitution. (See Miller r. Mayor of New York, 109 U.S. 385; Rscanaba
Co. V. Chicago, 107 U.S. 678.)

GUman v. Philadelphia, 3 Wall 71S (1865). — This was another bridge case, which
is apparently inconsistent with Pennsylvania r. Wheeling Bridge Co. The
Schuylkill River flows through the city of Philadelphia and empties into the Delaware ;
it is a tidal river for seven miles fi*om its mouth. It is navigable for vessels drawing
about 20 feet of water. A considerable tnwle is done upon it by barges and small
steamers, licensed under the laws of the United States. Gilman was the owner of coal
wharves on the river, below any bridge, but he was not the owner of any licensed
vessels. The legislature of Pennsylvania authorized the city of Philadelphia to erect a
new bridge across the river, below the plaintifiTs wharves. The plaintiflF feared that
the bridge would prevent masted vessels from passing it, would greatly interrupt the
navigation of the river, and would so injure his business. Congress hatl made the city
of Philadelphia a port of commercial entry, (iilman brought a suit against the city
corporation to restrain it from building the proposed bridge. The judgment of the
Court was delivered by Mr. Justice Swayne ; who said that the power to regulate
commerce covered a wi<le field, and embraced a great variety of subjects. Some of
these subjects called for uniform rules and national legislation ; others could be best
regulated bj' rules and provisions suggested by the varying circumstances of different
localities, and limited in their operation to such localities. To this extent the power to
regulate commerce might be exercised by the States. But even in respect to this latter
class of rules and provisions. Congress could interpose, whenever it should be deemed
necessary, by general or special laws ; and their interposition would sweep away the
local State legislation. Within the sphere of their authority, both the legislative and
the judicial powers of the nation were supreme. Mr. Justice Clifford dissented, on the
ground that Congress had already- sufficiently legislated to cover the subject-matter
and to deprive the State of power to build the bridge in question. This legislation
consisted in the navigation laws, which, as had been repeatedly held, enabled vessels
registered or enrolled and licensed to enter all navigable waters free from StAte inter-
ference ; but especially in the statute declaring Philadelphia to be a port of entry. He
asserted that Willaon r. Blackbird Creek Marsh Co. had no application ; because

532 COMMENTARIES ON THE CONSTITUTION. [See. 61-i.

the statute of Delaware was upheld in that case as a measure of police, a means to
reclaim marsh lands and improve the health of the neighbourhood.

Referring to this decision, Dr. Pomeroy says : " I cannot refrain from saying that
the dissenting opinion of Judge Clifford is a most overwhelming answer to the positions
taken by the Court. Leaving out of view the Blackbird Creek case, the judgment in
Oilman v. Philadelphia is opposed to the whole scope and tenor of all prior decisions, and
is in direct conflict with Pennsylvania v. Wheeling Bridge Company. Indeed, these two
cases are absolutely identical in their facts ; in each case the plaintiff sought to protect
his rights as proprietor on the banks of the river above the bridge ; in each a State, by
its statute authorizing a permanent bridge, had interfered with those rights ; in neither
had Congress directly legislated upon the subject of bridges. Yet the Court overthrew
the statute of Virginia and upheld that of Pennsylvania ; they deliberately adopted, in
the Philadelphia case, the position of Chief Justice Taney in the dissenting opinion
which he delivered in the Wheeling case, although in the latter Congress had only
acted by recognizing Ohio as a navigable stream, while in the former. Congress had
directly legislated by declaring Philadelphia to be a port of entry. I repeat that, while
it cannot be supposed the Court intended to overrule the long series of great and most
ably considered cases which have been referred to, they have placed themselves in
antagonism to many of those decisions." (Const. Law, 10th ed. pp. 305-6.)

It seems to be now well settled that in the absence of Federal legislation a State may
authorize a navigable stream within its limits to be obstructed by a dam, bridge, or high-
way (Pound V. Turck, 95 U.S. 4.59) ; that in the improvement of her waterways a Stale
may alter the course of a river (Withers v. Buckley, 20 How. 84) ; that a State may prac-
tically turn a river into a canal and charge vessels for its use to pay for such improvement
(Sands?;. Manistee River Improv^ement Co., 123 U.S. 288; Ruggles t>. Manistee River
Improvement Co., 123 U.S. 297); that a State may improve her harbours (Mobile v.
Kimball, 102 U.S 691) ; that a State may build and own wharves (Ouachita Packet Co. v.
Aiken, 121 U.S. 444). A State, however, cannot use such improvements, or any other
public property, as a means of regulating commerce. Though a State can charge rent
for the use of a wharf, based on the toiuiage of the vessel, or for its occupation by
imported goods, which she could not do as a tax, or in the exercise of any reserved power,
she cannot discriminate in her charges against vessels loaded with the products of other
States. (Guy v. Baltimore, 100 U.S. 434.)

Case of the State Freight Tax, 15 Wall. 2S2 (1872). — In the Reading Railroad Co. v.
Pennsylvania, generally known as the State Freight Tax Case, the State of Pennsylvania
had imposed a tax on every ton of freight carried within the limits of the State ; no dis-
tinction or discrimination was made between domestic and inter-state traffic. The tax
was justified by the State, as made in the exercise of its right of taxation. It was
claimed that the State had a right to tax all property within its jurisdiction, and that
it was entitled to do so as long as it abstained from discrimination. The Supreme Court,
however, declared the State law void on the ground that it was a regidation of com-
merce among the States. This judgment is valuable as affirming (1) That freight,' the
reward for the transportation of the subjects of commerce, whether by land or water, is
a constituent of commerce ; (2) That the bringing of goods from the seller to the Imyer
is commerce ; (3) Tliat a tax upon freight, transported from State to State, is a regula-
tion of commerce.

Wellm V. MixHOuri, 91 U.S. 275 {1875).— In this case Welton sold, in the State of
Missouri, certain sewing machines which had been manufactured outside the State. He
sold without having a State license, as required by a State Act. The Act in question
provided that whoever should sell goods, wares, or merchandise " which are not the
growth, produce, or manufacture of this State." by going from place to place to sell the
same, was "declared to be a peddler." Other sections of the Act prohibited peddling
in the State without a license, and provided a penalty for breach of the prohibition.
No license was required to peddle goods the growth, produce or manufacture of the

§ 163.]

POWERS OF THE PARLIAMENT. 533

State Welton was arrested and fined. The Supreme Court of the State declared that
the State law was valid. Welton appealed to the Supreme Court of the United States,
which held that the Missouri law was unconstitutional. In giving the judgment of the
Court Mr. Justice Field said that the license tax was sought to be maintained as a tax
upon a calling. The general power of a State to impose license taxes on businesses
within its limits was admittetl, but must be exercised subject to the Constitution.
Where the business consisted in the sale of goods, a tax upon the business was in efiFect
a tax upon the goods themselves. "It would be premature to state any rule which
would be imiversal in its application to determine when the commercial power of the
Federal Government over a commodity has ceased, and the power of the State has
commenced. It is suflBcient now to hold that the commercial power continues until
the commodity has ceased to be the subject of discriminating legislation by reason of its
foreign character."

Mtinn V. Illinois, 94 U.S. 113 [1876). — In this case the question raised was whether
the General Assembly of Illinois could legally fix by law the maximum charges for the
storage of grain in warehouses, in Chicago and other places in the State, in which grain
was stored in bulk, and in which the grain of different owners was mixed together. The
Supreme Court of the United States upheld the validity of the law. It was not every-
thing which affected commerce that amount«d to a regulation of c-ommerce. The
warehouses referred to were situated, and their business conducted exclusively, within
the limits of the State of Illinois. They were used as instruments by those engaged in
State as well as by those engaged in inter-state commerce ; but they were no more
necessarily a part of the commerce itself than a dray or cart by which grain could be
transferred from one railway station to another. Incidentally they might become
connected with inter-state commerce, but not necessarily so. Their regulation was a
thing of domestic concern, and certainly, until Congress acted in reference to their
inter-state relations, the State might exercise all the powers of government over
them, even though in so doing it indirectly operated upon commerce outside its
immediate jurisdiction. "We do not say," continued Chief Justice Waite, "that a
case may not arise in which it will be found that a State, under the form of regulating
its own affairs, has encroached upon the exclusive domain of Congress, in respect to
inter-state commerce, but we do say that, upon the facts as they are represented to us
in this record, that has not been done." (94 U.S. 135.)

Railroad Co. v. Susen, 95 U.S. 46.5 (IS77). — In this case a statute of Missouri
prohibited the driWng or convej'ing of any Texas, Mexican, or Indian cattle into the
State during certain periods of the year. It was held that this law was a regulation of
commerc-e, and therefore contrary to the Constitution. Mr. Justice Strong said that the
transportation of property from one State to another was a branch of inter-state
commerce, and that though a State had full power over commerce which was completely
internal, it could no more prohibit or regulate inter-state commerce than commerce \»ith
foreign nations. In reference to the argument that the statute called into question was
a lawful exercise of the police power, he said : —

" What that power is, it is difficult to define with sharp precision. It is generally
said to extend to making regulations promotive of domestic order, morals, health and
safety. . . . The police power of a State justifies the adoption of precautionary
measures against social cntIs. Under it a State may legislate to prevent the spread of
crime or pauperism, or disturbance of the peace. It may exclude from its limits
convicts, paupers, idiots and lunatics, and persons likely to become a public charge, as
well as persons afilicted by contagious or infectious diseases. . . . The same
principle . . . would justify the exclusion of property dangerous to the property of
citizens of the State ; for example, animals having contagious or infectious diseases.
All these exertions of power . . . are self-defensive. . . . While for the
purpose of self- protection it {i.e., a State) may establish quarantine and reasonable
inspection laws, it may not interfere with transportation into or through the State,
beyond what is absolutely necessarj' for its self-protection. It may not, under the cover
of exerting its police powers, substantially prohibit or burden either foreign or inter-
state commerce." (95 U.S. pp. 470-2.)

534 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-i.

Pensacola Telegraph Co. v. Wesiern Union Telegraph Co., 96 U.S. 1 (1877). — The
State of Florida granted to the Pensacola Telegraph Company the exclusive right to
establish and maintain telegraph lines in certain counties of that State. Prior to this,
Congress had passed a law providing that telegraph lines might be established over any
portion of the public domain of the United States, along military and post roads, and
across navigable streams and waters. The Western Union Company filed with the
Postmaster-General its acceptance of the terms of the Act. The Pensacola Company
thereupon instituted a suit to restrain the Western Union Company from constructing
lines in derogation of its exclusive rights. In the judgment of the Supreme Court it
was stated that the commercial powers granted to Congress were not confined to the
instrumentalities of commerce, or the postal system, as known and used when the
Constitution was adopted, but that they kept pace with the progress of the country and
adapted themselves to the new developments of times and circumstances. They extended
from the horse with its rider to the stage coach, from the sailing vessel to the steam-
boat, from the coach and the steamboat to the railroad, and from the railroad to the
telegraph, as these new agencies were successfully brought into use to meet tlie demands
of increasing population and wealth. These commercial powers were intended for the
government of the business to which they related. They were entrusted to the
Government for the good of the nation ; it was not only the right but the duty of the
Federal legislature to see that intercourse among the States and the transmission of
intelligence were not obstructed or unnecessarily impeded by State legislation. The
Court held that the electric telegraph had become an indispensable means of inter-
communication, especially in commercial transactions. It could not for a moment be
doubted that this powerful agency of commerce and inter-communication came within
the controlling power of Congress, certainlj' as against hostile State legislation. It was
therefore held that the State of Florida, in attempting to confer on a single corporation
the exclusive right of transmitting news by telegraph over part of its territory, had
encroached upon the domain of commercial power vested in Congress, and the claim of
the Pensacola Company to restrain the Western Union Company was not sustained.

Escanaba Co. v. Chicago, 107 U.S. 678 (1882). — The Escauaba Company, created
by the law of Michigan, was the owner of tliree steam vessels engaged in the carrying
trade between ports in different States, on Lake Michigan and on the navigable waters
connecting it. Its vessels were enrolled and licensed for the coastal trade under the
laws of the United States. They did a large business in carrying iron ore from
Escanaba to the south branch of the Chicago River in the city of Chicago. In their
course up the river they were required to pass through draws of several bridges,
constructed over the stream by the city of Chicago. By an ordinance of the city the
draws were closed for an appointed hour of the morning and evening during week days,
and the time during which a draw might be left open for the passage of a vessel was
limited to ten minutes. The Company complained of these obstructions and limitations,
and applied for an injunction to restrain the city from enforcing the ordinance. The
Court upheld the validity of the State law, on the ground that it came within the rule
of matters of internal police — including in that general designation whatever would
promote the peace, comfort, and convenience, of the people of the State, and embracing
the construction and control of roads, canals, bridges, and other means of internal
communication. Such power the State could exercise, so long as it did not unnecessarily
obstruct the navigation of the river or its branches ; when that occurred Congress could
interfere and remove the obstruction.

Oloucester Ferry Co. v. Penmsylvania, II4 U.S. 196 (1885).— The Gloucester Ferry
Company was incorporated under the law of New Jersey, and established a ferry
between Gloucester, in the State of New Jersey, and Philadelphia, in the State of
Pennsylvania. At its landing place in each State it had a dock ; the one in Gloucester
it owned, the one in Philadelphia it leased. The entire business of the Company
consisted in ferrying passengers and freight across the river ; its boats were registered

4 163.] POWERS OF THE PARLIAMENT. 535

in New Jersey, where it was domiciled and held all its property, except the lea.se of its
<lock in Pennsylvania ; its boats remained in Pennsylvania only long enough to discharge
and receive passengers and freight. In 1879 the legislature of Pennsylvania passed an
Act imposing taxes on corporations, domestic or foreign, doing business or employing
capital in Pennsylvania. The State sued the Company to recover taxes on its business
done between the two States. The Supreme Court of the State sustained the tax. The
Company appealed to the Supreme Court of the United States. In support of the tax,
it was argued that the Company did business within the State of Pennsylvania, because
it landed and received passengers and freight at its wharf in Philadelphia ; that its
whole income was derived from the transportation of freight and passengers between
Gloucester and Philadelphia ; that at each of these points its main business was
transacted ; that for such business it was as much dependent upon the laws and
protection of one State as of the other ; that as it could only purchase its wharf at
Gloucester by the will of the legislature of New Jersey, so it could only lease the one in
Philadelphia with the consent of the legislature of Pennsylvania. It was therefore
contended that the Company was dependent equalh', not only for its business, but for
its power to do that business, upon both States, and consequently it might be taxed by
both. The Supreme Court had no difficulty of disposing of these arguments. Mr.
Justice Field, in delivering the judgment of the Court, said : —

" The business of landing and receiving passengers and freight at the wharf in
Philadelphia is a necessary incident to, indeed is part of, their transportation across the
Delaware River from New Jersey. Without it that transportation would be impossible.
Transportation implies the taking up of persons or property at some point and putting
them down at another. A tax, therefore, upon such receiving and lauding of passengers
and freight is a tax upon their transportation ; that is, upon the commerce between
the two States involved in such transportation. . . . According to the decision in the
Standard Oil Compiny case, and by the general law on the subject, the company has no
domicile in Penn.sylvania, and its capital stock representing its property is held outside
of its limits It is solely, therefore, for the business of the company in landing and
receiving passengers at the wharf in Philadelphia that the tax is laid, and that business,
as already said, is an essential part of the transportation between the States of New
Jersey and Pennsylvania, which is itself inter-state commerce While it is conceded
that the property in a State belonging to a foreign corporation engaged in foreign or inter-
state commerce may be taxed equallj' with like property- of a domestic corporation
engaged in that business, we are clear that a tax or other burden imposed on the property
of either corporation because it is used to carry on that commerce, or upon the transpor-
tation of persons or property, or for the navigation of the public waters over which the
transportation is made, is invalid and void as an interference with, and an obstruction of,
the power of Congress in the regulation of such commerce. . . . The cases where a tax or
toll upon vessels is allowed to meet the expenses incurred in improving the navigation
of waters traversed by them, as bj' the removal of rocks, the construction of dams and
locks to increase the depth of water and thus extend the line of navigation, or the con-
struction of canals around falls, rest upon a ditferent principle. The tax in such cases is
considered merely as compensation for the additional facilities thus provided in the
navigation of the waters. . . . Upon similar grounds, what are termed harbour dues or
port charges, exacted by the State from vessels in its harbours, or from their owners, for
other than sanitary purposes, are sustained. We say for other than sanitary purposes, for
the power to prescribe regulations to protect the health of the community, and prevent
the spread of disease, is incident to all local municipal authority, however much such
regulations may interfere with the movements of commerce. But, independently of such
measures the State may prescribe regulations for the government of vessels whilst in its
harbours ; it may provide for their anchoi-age or mooring, so as to prevent confusion and
collision ; it may designate the wharves at which they shall discharge and receive their
passengers and cargoes, and require their removal from the wharves when not thus
engaged, so as to make room for other vessels. It may appoint officers to see that the
regxilations are carried out, and impose penalties for refusing to obey the directions of
such officers ; and it may impose a tax upon vessels sufficient to meet the exp)enses
attendant upon the execution of the regulations. The authority for establishing regula-
tions of this character is found in the right and duty of the supreme power of the State
to provide for the safety, convenient use, and undisturbed enjo3ment of property within
its limits ; and charges incurred in enforcing the regulations mayproperlybe considered as
compensation for the facilities thus furnished to the vessels. . . . The power of the States
to regulate matters of internal police includes the establishment of ferries as well as the

536 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-

construction of roads and bridges. In Gibbons v. Ogden, Chief Justice Marshall said
that laws respecting ferries, as well as inspection laws, quarantine laws, health laws, and
laws regulating the internal commerce of the States, are component parts of an immense
mass of legislation, embracing everything within the limits of a State not surrendered to
the general government ; but in this language he plainly refers to ferries entirely within
the State, and not to ferries transporting passengers and freight between the States and a
foreign country. . . . Such a ferry is a means, and a necessary means, of commercial inter-
course between the States bordering on their dividing waters, and it must, therefore, be
conducted without the imposition by the States of taxes or other burdens upon the
commerce between them. Freedom from such imposition does not, of course, imply
exemption from reasonable charges, as compensation for the carriage of persons, in the
way of tolls or fares, or from the ordinary taxation to which other property is subjected,
any more than like freedom of transportation on land implies such exemption. Reason-
able charges for the use of property, either on water or land, are not an interference
with the freedom of transportation between the States secured under the commercial
power of Congress." (114 U.S., pp. 210-217.)

The judgment of the Supreme Court of Pennsylvania was, therefore, reversed. It
must be noted, however, that this judgment does not impugn the right of States, or of
towns and cities acting under State authority, to regulate the use of wharves on navi-
gable rivers and to impose charges for such use. In the case of the Packet Co. v.
Keokuk, 95 U.S. 80, it was said by Mr. Justice Strong : —

"The principal question presented by the record of this case is, whether &
municipal corporation of a State, having % the law of its organization an exclusive
right to make wharves, collect wharfage, and regulate wharfage rates, can, consistently
with the Constitution of the United States, charge and collect wharfage proportionate to
the tonnage of the vessels from the owners of enrolled and licensed steamboats mooring
and landing at the wharves constructed on the banks of a navigable river. If the charge
is clearly a duty, a tax, or burden, which in its essence is a contribution claimed for the
privilege of entering the port of Keokuk, or remaining in it, or departing from it,
imposed, as it is, by authority of the State, and measured by the capacity of the vessel,
it is doubtless embraced by the constitutional prohibition of such a duty. But a charge
for services rendered or for conveniences provided is in no sense a tax or a duty. . . .
It is a tax or a duty that is prohibited ; something imposed by virtue of sovereignty,
not claimed in right of proprietorship. Wharfage is of the latter character. . . .
A passing vessel may use the wharf or not, at its election, and thus may incur liability
for wharfage or not, at the choice of the master or owner. ... It has always been
held that wharfage dues may be exacted." (95 U.S. pp. 84-5. See Cannon v. New
Orleans. 20 Wall. 577. )

In the later case of Transportation Co, v. Parkersburg, 107 U.S. 691, the question
raised was whether an ordinance of the city of Parkersburg, imposing a wharfage due
upon all vessels discharging or receiving freight at the city wharves on the Ohio River,
was valid. The plaintiff alleged that the charge demanded was not one of wharfage, but
of tonnage. The court held that wharfage was a charge against a vessel for using or
lying at a wharf or lauding, such charge being collected by the owner of the wharf, or
landing, as a rent for the temporary use of the property. On the other hand, a duty of
tonnage was a charge imposed and collected by the government for the privilege of
entering, trading, or lying in a port or harbour.

Bowman v. Chicago and North-western Railway Co., 125 U.S. 465 (188S). — A law of
the State of Iowa prohibited common carriers from bringing intoxicating liquors into the
State from any other State, without first being furnished with a certificate as prescribed.
This law was declared by the Supreme Court of the United States to be invalid, as
being a regulation of commerce among the States. The Court did not determine the
question whether the right of transportation of an article of commerce from one State to
another included, by necessary implication, the right of the consignee to sell it, in
unbroken packages, at the place where transportation terminated ; that point was in
terms reserved, yet the argument of the majority led irresistibly to that conclusion.

Minnesota v. Barber, 136 U.S. 313 (1S90). — A law of the State of Minnesota, entitled
an " Act for the protection of the public health, by providing for inspection, before
slaughter, of cattle, sheep, and swine, designed for slaughter for human food " required
that animals thus described should be inspected by State officers within twenty-four

§ 163.] POWERS OF THE PARLIAMENT. 5^57

hoars before they were slaughtered. If fonnd fit for slaughter it was provided that
certificates to that efi"ect should be given ; if not found fit they had to be removed and
destroj'cd. Barber was convicted before a Justice of the Peace of Minnesota, of having
wrongly sold, for human food, part of an animal slaughtei-ed in the State of Illinois, but
which had not been inspected in Minnesota. The State Courts held that the Act wa.s
repugnant to the Constitution, and void, and annuUed the conviction.

The State authorities appealed to the Supreme Court of the United States. It was
arguetl that the statute was passed in good faith for the purpose expressed in its title — to
protect the health of the people of Minnesota. Mr. Justice Harland, in delivering the
opinion of the court, said that the good faith of the State was to be presumed, but that
presumption could not control the final determination of the question whether the State
law was unconstitutional or not. There might be no purpose on the part of a State
legislature to violate the provisions of the great instrument of government, and yet a
statute enacted by it under the forms of law might be destructive of rights intended to
be secured by the Constitution. Dealing with the arguments on behalf of the State, the
Court said that the enactment of a similar statute by each one of the States composing
the Union would result in the destruction of commerce among the several States, so far
as such commerce involved the transportation from one part of the country to another
of animal meat designed for food. If the object of the statute had been to deny
altogether to the citizens of other States the privilege of selling, within the limits of
Minnesota, any fresh meat from animals slaughtered outside of that State, and to compel
the people of Minnesota either to purchase meat taken from animals inspected and
slaughtered in the State, or to incur the cost of purchasing meat, when desired for their
own domestic use, at points beyond the State, that object was attained by the Act in
question. The duty of the Government, to maintain the Constitution, would not permit
it to shut its eyes to these obvious and necessary results of the Minnesota statute. If
this legislation did not make such discrimination against the products and business of
other States, in favour of the prwlucts and business of Minnesota, as interfered with and
burdened commerce among the several States, it would be difficult to enact legislation
that would have that result. In the opinion of the Court, the statute in question was in
violation of the Constitution and void.

Leiny v. Hardin, 135 U.S. 100 (1890). — The plaintifi^ were brewers doing business in
the State of Dlinois, and they shipped beer in sealed packages to Keokuk, in the State
of Iowa, where it was offered for sale. By the law of Iowa, the manufacture or sale of
intoxicating liquors, or the keeping of them with the intent to sell, except for medicinal,
chemical, and sacramental purposes, was prohibited. A quantity of the beer imported
by the plaintiffs was seized by Hardin, the city marshal of Keokuk, purporting to act
under the authority' of the law of the State, and the plaintiffs sued Hardin to recover
the value of the beer seized. The local court gave judgment for the plaintiff, but the
Supreme Court of Iowa reversed that decision. The plaintiffs then appealed to the
Supreme Court of the United States. The sole question involvetl was the validity of
the State prohibition law. Chief Justice Fuller delivered the judgment of the Court,
which applied the principles established in Bowman r. Chicago to the sale of liquor
imported from another State, in the package in which it was imported- This
was no new principle ; it had been decided by Chief Justice Marshall, in Brown v.
Maryland, that a package remained the subject of inter-State commerce until
the importer sold it, or broke the package in which it was imported. The Court
therefore held that the law of Iowa, so far as it prohibited the sale by the importer, in
the packages of importation, of liquor brought from other States, was invalid, because it
was in conflict with the wUl of Congress. The Court interpreted the silence of Congress,
in not passing anj- law to regulate the sale of imported liquors and in not allowing the
States to do so, to indicate its will that such commerce should be free and untrammelled.
Referring to the Federal law at the time of the adoption of prohibition in Iowa, Chief
Justice Fuller said : —

538 COMMENTARIES ON THE CONSTITUTION. [Sec 51--i.

" Up to that point of time, we hold that in the absence of congressional permission
to do so, the State had no power to interfere by seizure, or any other action, in pro-
hibition of importation and sale by the foreign or non-resident importer. Whatever
our individual views may be as to the deleterious or dangerous qualities of particular
articles, we cannot hold that any articles which Congress recognizes as subjects of inter-
state commerce are not such, or that whatever are thus recognized can be controlled by
State laws amounting to regulations, while they retain that character ; although, at the
same time, if directly dangerous in themselves, the State may take appropriate measures
to guard against injury before it obtains complete jurisdiction over them. To concede
to a State the power to exclude, directly or indirectly, articles so situated, without
■congressional permission, is to concede to a majority of the people of a State, repre-
sented in the State legislature, the power to regulate commercial intercourse between
the States, by determining what shall be its subjects, when that power was distinctly
granted to be exercised by the people of the United States, represented in Congress, and
its possession by the latter was considered essential to that more perfect union which the
Constitution was adopted to create Undoubtedly, there is difficulty in drawing the
line between the municipal powers of the one government and the commercial powers of
the other, but when that line is determined, in the particular instance, accommodation
to it, without serious inconvenience, may readily be found, to use the language of Mr.
Justice Johnson in Gibbons /;. Ogden, 9 Wheat. 1,2:^8, in ' a frank and candid co-opera-
tion for the general good.' " (1,35 U.S. pp. r24-.5. )

Referring to the case of Peirce v. New Hampshire (5 How. 504), Chief Justice
Fuller said that, in so far as it rested on the view that the law of New Hampshire was
valid because Congress had made no regulation on the subject, it must be regarded as
having been distinctly overthrown by numerous cases. In consequence of the decision
in Leisy ?;. Hardin, Congress on 8th Aug., 1890, passed a measure, now known as the
Wilson Act, the text of which is as follows : —

" That all fermented, distilled, or other intoxicating liquors or liquids transported
into any State or Territory, or remaining therein for use, consumption, sale or storage
therein, shall, upon arrival in such State or Territory, be subject to the operation and
«tfect of the laws of such State or Territory enacted in the exercise of its police powers,
to the same extent and in the same manner as though such liquors or liquids had been
produced in such State or Territory, and shall not be exempt therefrom by reason of
being introduced therein in original packages or otherwise "

A section containing provisions similar in substance to that of the Wilson Act has
been embodied in the Constitution of the Commonwealth. (See sec. 113.)

Addyt!ton Pipe and Steel Co. v. United States, 175 U.S 211 (1899).— In this, the
most recent case on the meaning of the commerce clause, it was decided that Congress,
Tinder its power to regulate commerce, may forbid contracts and combinations between
private individuals which operate directly and substantially in restraint of trade. Six
companies, situated in four different States, entered in 1894 into a combination, agreeing
that there should be no competition between them, in certain States and Territories, in
regard to the manufacture and sale of cast-iron pipes. The object and effect of the
combination was to enhance the prices of their goods. The United States took
proceedings against them, under the Federal Act of 1890, entitled " an Act to protect
trade and commerce against unlawful restraints and monopolies," and prayed for a
perpetual injunction against the defendants working under the combination agreement,
as being in restraint of trade. The Trial Court dismissed the case, but the Circuit
Court reversed this decision, and ordered the injunction to be granted. The defendants
then appealed to the Supreme Court of the United States.

On behalf of the appellants it was argued that the power of Congress was limited to
preventing interference by the State legislatures, or by regulations made under the
authority of a State by some political department thereof — including congressional
power over common carriers, and elevator, gas, and water companies, for reasons
stated to be peculiar to such carriers and companies — but that it did not include the
general power to interfere with or prohibit private contracts between citizens, even
though such contracts had inter-state commerce for their object, and resulted in a direct
and substantial obstruction to or regulation of that commerce. The whole purpose of
the commerce clause, it was urged, was to guard against discriminating legislation by

?163.]

POWERS OF THE PARLIAMENT 539

the States. The clause which forbade Congress to pass any law impairing the obliga-
tion of contracts was also relied on.

The judgment of the Court was delivered by Mr. Justice Peckham. He maintained
the absolute and unlimited power of Congress to regulate inter-state trade and
commerce, and declined to recognize the suggested limitation. The opinion of the
Court is clearly expressed in the following extract : —

"If certain kinds of private contracts do directly, as already stated, limit or
restrain, and hence regulate, inter-state commerce, why should not the power of
Congress reach those contracts just the same as if the legislation of some State had
enacted the provisions contained in them ? The private contracts may indeed be as far-
reaching in their etiect upon inter-state commerce as would the legislation of a single
State of the same character. . . . What sound reason can be given why Congress
should have the power to interfere in the case of the State, and jet have none in the
•case of the individual ? Commerce is the important subject of consideration, and any-
thing which directly obstructs and thus regulates that commerce which is carried on
among the States, whether it is State legislation or private contracts between individuals
or corporations, should be subject to the power of Congress in the regulation of that
commerce." (175 U.S. pp "2'29-30.)

The Court held that under the commerce power Congress may legislate to declare
void and prohibit the performance of any contract between individuals or corporations,
where the natural and direct effect of such a contract is, when carried out, to directly,
And not as a mere incident to other and innocent purposes, regulate to any extent inter-
state or foreign commerce ; that the pro\nsion in the Constitution regarding the liberty
of the citizen is to some extent limited by the commerce clause, and the power of
Congress to regulate inter-state commerce comprises the right to enact a law prohibiting
a citizen from entering into those private contracts which directly and substantial!}', and
not merely indirectly, remotely, incidentally, and collaterally, regulate to a greater or
less extent commerce among the States ; and that, since the Anti-Trust Act of 1890,
any agreement or combination which directly operates, not alone upon the manufacture,
but upon the sale, transportation, and delivery of an article of inter-state commerce,
by preventing or restricting its sale, thereby regidates inter-state commerce to that
extent, and thus trenches upon the powers of the national legislature, and violates the
statute. The contracts in this case were held to have this effect, and to violate the
Anti-Trust Act ; and the judgment of the Circuit Court, though held to be too wide so
far as it extended to internal commerce, was affirmed so far as inter-state commerce was
concerned.

Beuinxinu axd End of Federal Control. — " Any article of foreign commerce is
protected against the power of the States from the moment, in the case of an export,
that this quality attaches to it, and to the moment, in the case of an import, when it is
divested of the same ; » e., from the moment, in the first case, when it is delivered to
the first common carrier for exportation, and to the moment, in the second case, when it
has passed into the hands of the purchaser of the unbroken package from the original
importer, or has been broken up for retail by the original importer." (Coe v. Errol, 116
U.S. 517 ; Turpin i'. Burgess, 117 U.S. 504 ; Brown v. Maryland, 12 Wheat. 419.
Burgess, Political Sc. ii. 135. )

Extent of the Commercial Power. — "The commercial system of the United
States has also been employed for the purpose of revenue ; sometimes for the purpose of
prohibition, sometimes for the purpose of retaliation and commercial reciprocity ; some-
times to lay embargoes ; sometimes to encourage domestic navigation and the shipping
and mercantile interests by bounties, by discriminating duties, and by special prefer-
ences and privileges, and sometimes to regulate intercourse with a view to mere political
objects, such as to repel aggressions, increase the pressure of war, or vindicate the
rights of neutral sovereignty." (Story, Comm. § 1076.)

Traffic and Intercoijk.se. — "Commerce undoubtedly is traffic, but it is something
more. It is intercourse. It describes the commercial intercourse between nations, and
parts of nations, in all its branches ; and is regulated by prescribed rules for carrying on
that intercourse." (Story, Comm. § 1061.)

" It may, therefore, be safeh' affirmed that the terms of the Constitution have at all
times been understood to include a power over navigation, as well as trade ; over inter-
course, as well as traffic, and that, in the practice of other countries, an<l especially in

540 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-i.

our own, there has been no diversity of judgment or opinion. During our whole colonial
history, this was acted upon by the British Parliament as an uncontestable doctrine.
That Government regulated not only our traffic with foreign nations, but our navigation
and intercourse as unquestioned functions of the power to regulate commerce." (Story^
Comm. § 10S4.)

" This power of the Constitution extends to commerce with foreign nations, and
among the several States, and with the Indian tribes. In regard to foreign nations, it
is universally admitted that the words comprehend every species of commercial inter-
course. No sort of trade or intercourse can be carried on between this country and
another to which they do not extend. Commerce as used in the Constitution is a unit,
every part of which is indicated by the term." {Id. § 1065.)

Navigation' and Shipping (see Notes, § 410, infra). — The power to regulate
commerce includes the regulation of navigation. (Cooley v. Port Wardens, 12 How.
299, 315; the Barque Chwan, 2 Story, 455.) A bill providing for the recording of
mortgage, hypothecation, or conveyance of any vessel, is a regulation of commerce, and
is consequentl}' within the power over commerce. (White's Bank i". Smith, 7 Wall. 64(i.)
Under its power to regulate commerce the Federal Legislature has authority to establish
a lien on vessels of the Union in favour of material-men, uniform throughout the whole
country. In particular cases, until the Federal Legislature acts, the States may
continue to legislate. Hence, a lien granted by State law to material-men who furnish
necessaries to a vessel in its home port in such State is valid. (The Lotiawanna, 21
Wall. 588. ) The power over vessels is co-extensive with the power over the cargo.
(The Brig Wilson, 1 Brock. 423.) Condensed from Baker, Annot. Const, p. 21 and 34.

Dams and Bridges across Navigable Waters (see Notes, § 417, infra). — A
bridge erected across a navigable river so as to '-obstruct navigation is a nuisance,
and an Act of a State Legislature authorizing its construction affords no justification to
the person erecting it. (Pennsjdvania v. Wheeling Bridge Co., 13 How. 518.) The
power to regulate commerce comprehends the control for that purpose of all the
navigable waters of the Union which are accessible from a State other than that in
which they lie. It is for the Federal Legislature to determine when its full powers will
be exercised, and what regulations it will make. (Oilman v. Philadelphia, 3 Wall. 713.)
A bridge constructed in accordance with Federal and State legislation is a lawful
structure; and it cannot thereafter be treated as a public nuisance. (Miller v. Mayor
of New York, 109 U.S. 385.) Condensed from Baker, Annot. Const, p. 21.

River Within a State (see Notes, § 417, m/ra).— If a river is not of itself a
highway for commerce with other States or foreign countries, or does not form such
highway b}' its connection with other waters, and is only navigable between different
places within the State, it is not a navigable water of the Union, and a federal law for
the enrolment and license of vessels does not apply. (The Montello, 11 Wall. 411.)
Where a river is wholly within the limits of a State, the State can authorize any
improvement which, in its judgment, will enhance its value as a means of transportation
from part of the State to another. The internal commerce of a State — that is, commerce
which is wholly confined within its limits — is as much under its control as foreign or
inter-state commerce is under the control of the general government. (Mobile v.
Kimball, 102 U.S. 691 ; Huse v. Glover, 119 U.S. 543; Sands v. Manistee Riv. Imp.
Co.. 123 U.S. 288.) Until the Federal Legislature acts respecting navigable streams
entirely within a State, the State has plenary powers ; but it is not concluded by any-
thing that the State may have done, from abating any erections that may have been
made, and preventing any other from being made, except in conformity with such
regulations as it may impose. (Willamette Iron Bridge Co. v. Hatch, 125 U.S. I.)
Condensed from Baker, Annot. Const, p. 23.

The Penobscot River is wholly within the State of Maine. The lower eight miles is
crossed by several dams, and is not navigable. Above that there is imperfect navigation.
A law of the State providing for the improvement of this upper navigation, and granting
exclusive privileges to the company improving the same, is constitutional. (Veazie v.
Moor, 14 How. 568. Baker, Annot. Const, p. 21.)

Improvement of Navigation and Removal of Obstructions. (See Notes, § 417
infra.) — The right to regulate commerce includes the right to regulate and improve
navigable waters and ports, and the Federal legislature may for that purpose close to
navigation one of several channels in a navigable stream. (South Carolina v. Georgia,
93 U.S. 4. Baker, Annot. Const, p. 22.)

The Federal Legislature has the control of all navigable rivers between the States,
or connecting with the ocean, so as to preserve and protect free navigation. As a
corollary of this, it has the paramount right to determine what shall be deemed an
obstruction to commerce. (Miller v. Mayor of N. Y., 109 U.S. 385. Baker, Annot.
Const, p. 22.)

■§ 163.] POWERS OF THE PARLIAMENT. 541

A federal act appropriating money for the improvement of navigation of Willamette
River, a stream wholly within the State of Oregon, was no assumption of police power.
Nor does it, by conferring the privilege of a port of entry on a town, conflict with the
police power of the State, exercised in bridging a naNigable stream of the Stat« at that
point. (Willamette Iron Bridge Co. r. Hatch, 125 US. 1. Baker, Annot. Const, p. 23.)

The Federal Legislature may authorize the erection of railroad bridges across
naWgable waters to facilitate commerce among the States. (Raili'oad Co. v. Richmond,
19 Wall. 584 Baker. Annot. Const, p. 23.)

The Fe<leral Legislature has power to prevent the obstruction of any navigable river
which is a means of commerce between any two or more States. The exercise of this
great public right is not incompatible with the enjoyment of local rights. The public
right consists in an unobstructed use of a na^^gable water connecting two or more States.
The local right is to cross such water. The general commercial right is paramount to
the State authority. (Works r. Junction R.R. Co., 5 McLean, 426. Baker. Annot.
Const, p. 24.)

Xo State can obstruct a navigable stream which extends to other States or is con-
nected with a river or lake which falls into the sea. (Palmer v. Cuj'ahoga Co., 3
McLean, 226. Baker, Annot. Const, p. 24.)

A steam boat enrolled and licensed under a federal act is entitled to the protection
of the general government while engaged in carrying on commerce between different
States ; her owners have a right to use the navigable streams of the country free from
all material obstructions to navigation. (Jolly v. Terre Haute Draw-bridge Co., 6
McLean, 237. Baker, Annot. Const, p. 24. )

Commerce embraces navigation ; and the improvements of the harbours and bays
along our coasts, and of navigable rivers wthin the States connecting with such bays
and coasts, falls v^ithin the commercial power. (Mobile v. Kimball, 102 U.S. 691.
Baker, Annot. Const, p. 26.)

R.\iLWAYS, Federal Control of. — The Federal Legislature has authority, in the
exercise of its power to regulate commerce among the States, to either construct, or
authorize persons to construct, railroads across the States and territories of the Union.
(California i*. Pac. R.R. Co., 127 U.S. 1 ; Cherokee Nation v. South Kansas, 135 U.S.
641. Baker, Annot. Const, p. 4i. See note, § 221, iii/ra.)

Telegraphs. — Communications by telegraph are in their nature both postal and
commercial, and when passing between different States of the Union such communica-
tions are " commerce among the several States," and subject to federal regulation. A
general license tax imposed by State law upon such company, doing inter-state as well
as domestic business, is unconstitutional. The property of such company situated
within a State mav be taxed bv the State, not its inter-state business. (Leloup v. Port
of Mobile, 127 U.S. 64u. Baker, Annot Const, p. 31.)

The telegraph is an instrument of commerce, and when used between different
States is an instrument of inter-state commerce and subject to federal control. A State
cannot tax on messages sent out of the State. A tax on messages between private
parties sent from point to point wholly \dthin the State is not repugnant to this clause.
(Telegraph Co i: Texas, 105 U.S. 460; Pensacola Tel. Co. v. Western Union Tel. Co.,
56 U.S. 1. Baker, Annot. Const, pp. 31, 33.)

Whatever authority a State may possess over the transmission and delivery of
messages b\- telegraph companies \*"ithin her limits, it does not extend to the delivery of
messages in other States. (W.U. Tel. Co. r. Pendleton, 122 U.S. 347. Baker, Annot.
Const, p. 40.)

No tax can be impose<l by a State upon telegraphic messages sent into the State
from without, or out of the State from within. Sending a telegraphic message is
commerce, and when the same passes from point to point in different States it is
commerce among the several States. (West. Union Tel. Co. v. Alabama, 132 U.S. 472.
Baker. Annot. Const, p. 20.)

Pilotage. — The power to regulate commerce, as conferred on the Federal Legisla-
ture, does not exclude the exercise of authority by the States to regulate pilots.
(Steamship Co. v. Joliffe, 2 Wall. 450. Baker, Annot. Const, p 24.)

Pilot regulations are regulations of commerce. State pilotage laws, however, are
valid, but are subject to the power of the Federal Legislature over the matter. {Ex
parte McNiel, 13 Wall. 2.36.) A statute of Louisiana authorizing the port officers of
New Orleans to demand, in addition to other fees, the sum of five cents whether called
upon to perforin any service or not, for every vessel arriving in port, is in violation of
this clause. (Steamship Co. v. Port Wardens, 6 Wall. 31 ; Spraigue v. Thompson, 118
U.S. 90. Baker, Annot. Const, pp. 24, 25.)

542 COMMENTARIES ON THE CONSTITUTION. [Sec. bl-i.

Commercial Maeink. — The whole commercial marine of the country is placed by
the Constitution under Federal regulation, and all Federal laws on that subject, whether
in relation to foreign or coastwise trade, are supreme ; and where a State law contra-
venes such Federal laws it must give way. (Sinnot v. Davenport, 22 How. 227 ; Foster
V. Davenport, id 244. Baker, Annot. Const, p. 25.)

Roads, Bridges, and Canals. — The Federal Legislature has power to regulate
commerce, but this has never been construed to include the means whereby commerce ia
carried on within a State. It has never attempted to regulate canals, turnpikes, and
bridges, which do not interfere with Federal commerce. The establishment of post-
oflHces and post-roads does not affect or control the absolute power of the State over its
highways and bridges. The police power to make biidges is as absolutely vested in a
State as is the commercial power in Congress. (Milnor v. New Jersey R.R., cited
Baker, Annot. Const, p. 25.)

Federal Tax on Passengers. — A Federal Act imposing upon the owners of steam
sailing vessels a tax of fifty cents for every passenger, not a citizen of the Union, who is-
brought from a foreign port, is a valid exercise of the power to regiilate commerce.
The right to make such regulation is exclusively in the Federal Legislature, and any
such regulation when imposed by a State is invalid. (Edye v. Robertson, 112 U.S. 580.
Baker, Annot. Const, p. 28.)

Torts in Connection with Commerce. ^ — Until the Federal Legislature has made
some regulation upon the subject of the liability of parties for marine torts resulting in
death of the person injured, a State law giving to the lepresentatives of such person a
right of action where his death was caused by the negligence of another, within the
limits of such State, is not void as an interference with the commerce clause. (Sherlock
V. Ailing, 93 U.S. 99. Baker, Annot. Const, p. 34.)

A State law which imposes no tax, but simply declares a general principle respecting
liability of all persons within the State for torts resulting in the death of the party
injured, and applicable alike to all persons, whether engaged in navigation or not, is not
repugnant to the commerce clause. (Sherlock v. Ailing, 93 U.S. 99. Id.)

State Legislation affecting Commerce. — It may be said generally that, until the
Federal Legislature has dealt with tlie subject, the legislation of a State, not directed
against commerce, but relating to the rights, duties, and liabilities of citizens, and only
indirectly affecting the operations of commerce, is binding upon citizens within its juris-
diction, whether on land or water, or engaged in commerce, foreign or inter-state, or in
any other pursuit. Legislation may in a great variety of ways affect commerce and
per.sons engaged in it without constituting a regulation of it within the meaning of the
Constitution. (Sherlock?;. Ailing, 93 U.S. 99; State Tax on Gross Receipts Case, 15
Wall. 284. Baker, Annot. Const, p. 35. )

American and Canadian Powers Contrasted. — In the case of Thurlow v,
Massachusetts, 1847, 5 How. 586, Chief Justice Taney said that although Congress had,
under the Constitution, power to regulate the importation of goods, yet where Congress
had made no regulation on the subject, traffic in unregulated articles became subject to
State laws as soon as they were introduced into the territory of a State, and a tax could
be imposed upon them, or a license required, according to the discretion of the State
Legislature. This doctrine was cited in several leading Canadian cases with a view to
applying it to the interpi-etation of the Canadian Constitution. Referring to the
suggested analogy of the two Constitutions, Chief Justice Richie, in Regina v Justice*
of King's County, said : — " Cases from the United States Courts were cited as bearing
on this question, but there is a very clear distinction between the powers of Congress
and the powers of the Dominion Parliament. In the United States, Congress has not
I the same full power of regulating trade and commerce that belong to the Dominion
\ Parliament. ' The power of Congress, as we understand it, is confined to ' regulating
commerce with foreign nations and among the several States,' giving no right to interfere
with the internal commerce of an individual State ; that it does not extend to that
commerce which was completelj' internal, carried on within the particular State, and
which did not extend to, or affect, other States, but is restricted to that commerce
which concerns more States than one, I'eserving the completely internal commerce of a
State for the State itself, and, therefore, State license laws have been held constitutional
and valid." (Per Ritchie, C.J., in Reg. v. Justices of King's County, 1876, 15 N.
Bruns, [2 Pugs.] 535. Wheeler, C.C. 59. In another case the same learned judge

§ 163] POWERS OF THE PARLIAMENT. 543

said : — " Much has been said as to the analogy of the Dominion Parliament and local
Legislatures with the Congress of the Federal Government and the State Legislatures of
the United States ; but the Constitution of the United States and the Constitution of
the States, as regards the powers which each may exercise, are so different from the
relative powers of the Dominion Parliament and the Provincial Legislatures that the cases
to be found in the American books with regard to the i^tate Legislatures, in regard to
prohibiting the sale of intoxicating liquors, afford no guide whatever in the determination
of the powers of the local Legislatures and the Dominion of Canada. The Government
of the United States is one of enumerated powers, and the Governments of the States
possess all the general powers of legislation. Here we have the exact opposite. The
powers of the Provincial Governments are enumerated, and the Dominion Government
possess the general powers of legislation.'' (Per Ritchie, C.J., in City of Fredericton v.
Reg., 1880, 3 SCR. [Can.] 505. Wheeler, C.C. pp. 60-1.)

Commercial Contracts. — The legislature of the province of Ontario passed an Act
39 Vic. c. 24, intituled an Act to secure uniform conditions in policies of Fire Insurance.
It provides that the conditions set forth in the schedule to the Act should be deemed to
be part of every policy of fire insurance in force in Ontario, unless expressly varied by
the policy itself. This Act was impeached by an Insurance Company, as being in excess
of the legislative power of the Parliament of the Province. On appeal to the Privy
Council it was held valid. Sir Montague E. Smith ; in delivering the judgment of the
Judicial Committee, said : —

" A question was raised, which led to much discussion in the Courts below, and at
this bar, viz. , whether the business of insuring buildings against fire was a trade. This
business, when carried on for the isake of profit, may, no doubt; in some sense of the
word, be called a trade. But contracts of indemnity, made by insxirers, can scarcely be
considered trading contracts, nor were insurers who made them held to be ' traders '
under the English bankruptcy laws ; they have been made subject to those laws by
special description. Whether the business of fire-insurance properly falls within the
description of ' a trade " must, in their Lordships' view, depend upon the sense in which
that word is used in the particular statute to be construed ; but in the present case
their Lordships do not find it necessary to rest their decision on the narrow ground that
the business of insurance is not trade. The words ' regulation of trade and commerce,'
in their unlimited sense, are suflicientlj- wide, if uncontrolled by the context and other
parts of the Act, to include every regulation of trade, ranging from political arrange-
ments in regard to trade with foreign governments, requiring the sanction of Parliament,
down to minute rules for regulating particular trades. But a consideration of the Act
shows that the words were not used in this unlimited sense. In the first plac-e, the
collocation of No. 2 with classes of subjects of national and general concern affords an
indication that regulations relating to general trade and commerce were in the mind of
the legislature when conferring this power on the Dominion Parliament. If the words
had been intended to have the full scope of which, in their literal meaning, they are
susceptible, the specific mention of several of the other classes of subjects enumerated
in sec. 91 would have l>een unnecessary ; as. 15, banking ; 17, weights and measures ;
18, bills of exchange and promissory notes ; 19, interest ; and even 21. bankruptcy and
insolvency. ' Regulation of trade and commerce ' may have been used in some such
sense as the words ' regulations of trade ' in the Act of Union between England and
Scotland (6 Anne, c. 11), and as these words have been used in other Acts of State.
Article V. of the Act of Union enacted that all the subjects of the United Kingdom
should have ' full freedom and intercourse of trade and navigation ' to and from all
places in the L'nited Kingdom and the colonies, and Article YI. enacted that all parts
of the United Kingdom from and after the Union should be under the same ' prohibi-
tions, restrictions, and regulations of trade.' Parliament has, at various times since the
Union, passed laws affecting and regulating specific trades in one part of the L^nited
Kingdom only, without it being supposed that it thereby infringed the Articles of
Union. Thus the Acts for regulating the sale of intoxicating liquors notoriously vary in
the two kingdoms. So with regard to Acts relating to bankruptcy and various other
matters. Construing therefore the words ' regulation of trade and commerce ' by the
various aids to their intei-pretation above suggested, they would include political
arrangements in regard to trade, requiring the sanction of Parliament, regulation of
trade in matters of interprovincial concern, and it may be that they would include
general regulation of trade affecting the whole Dominion. Their Lordships abstain, on
the present occasion, from any attempt to define the limits of the authority of the

544 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-i.

Dominion Parliament in this direction. It is enough for the decision of the present
case to say that, in their view, its authority to legislate for the regulation of trade and
commerce does not comprehend the power to regulate by legislation the contracts of a
particular business or trade, such as the business of fire insurance, in a single
Province." (Citizens Insurance Co. v. Parsons, 7 App. Ca. pp. 111-3.)

Commercial Power of the Dominion.— In considering the Canadian Consti-
vj tutional Cases, and in comparing them with those of the United States, attention must

be paid to the fact that the Dominion has by express words in the Constitution exclusive
legislative authority over " the regulation of trade and commerce," whilst the Provinces
have exclusive legislative authority to make laws in relation to — (1) Direct taxation
within the Province in order to the raising of a revenue for provincial purposes.
(2) Municipal Institutions. (3) Shop, saloon, auctioneer, and other licenses in order to
the raising of a revenue for provincial, local, or municipal purposes. (4) Property and
civil rights. (5) Matters of a merely local, private, or provincial nature. In the inter-
pretation of the Canadian Constitution the great problem has been to reconcile the
operation of the legislative power of the Dominion, within the exclusive area assigned
to the Dominion, with the operation of the legislative power of the Provinces within the
exclusive area assigned to the Provinces. In some legislation of the Dominion, under
the trade and commerce section, there has been a tendency to encroach upon the local,
private, and municipal authority of the Provinces and their power to deal with civil
rights and property. The occasional conflict and overlapping of these two powers will
be seen illustrated in a few of the leading cases which have arisen under the Constitution
of the Dominion.

In 1877 a brewer named John Severn was prosecuted by the provincial authorities
in Ontario for selling liquor by retail without having a provincial license, as required by
the local Act 37 Vic. c. 32. The Supreme Court of Canada held that the provincial Act
was ultra rires, being in conflict with the power of the Federal Parliament to regulate
commerce. (Severn v. The Queen [1877], 2 S.C.R. [Can.] 70.) It will be seen that the
accuracy of this decision was subsequently doubted. In the case of Reg. v. The Justices
of King's County, 15 N. Bruns. (2 Pugs.) 535, the facts were that in February, 1875, one
McManus applied to the Justices in session for a tavern license. In the exercise of the
discretion conferred upon them by the New Brunswick Act, 36 Vic. c. 10, the Justices
refused to grant the license. McManus was shortly afterwards fined for selling without
a license. He then applied for a mandamus to compel the Justices to grant him a
license. The provincial authorities opposed the application and contended — (1) That
the power given to the Parliament of Canada by the B.N. A. Act, 1867, sec. 91, sub-sec. 2,
meant trade and commerce with foreign countries ; and that the power to make laws
respecting tavern licenses belonged exclusively to the provincial legislatures by sec. 92 ;
(2) that by the Act of Assembly, 36 Vic. c. 10, s. 2, it was entirely in the discretion of
sessions whether they granted licenses or not ; that it was an arbitrary discretion, which
could not be questioned. In delivering the judgment of the Court, Ritchie, C.J.,
said : —

" To the Dominion of Canada is given the power to legislate on the ' regulation of
trade and commerce,' and the power of ' raising money oy any mode or system of
taxation.' The regulation of trade and commerce must involve full power over the
matter to be regulated, and must necessarily exclude the interference of all other bodies
that would attempt to intermeddle with the same thing. The power thus given to the
Dominion Parliament is general, without limitation or restriction, and therefore must
include traffic in articles of merchandise, not only in connection with foreign countries,
but al.so that which is internal between diflerent Provinces of the Dominion as m ell as
that which is carried on within the limits of an individual Provijice. As a matter of
trade and commerce, the right to sell is inseparably connected with the law permitting
importation If, then, the Dominion Parliament authorize the importation of any
article of merchandise into the Dominion, and places no restriction on its being dealt
with in the due course of trade and commerce, or on its consumption, but exacts and
receives duties thereon on such importation, it would be in direct conflict with such
legislation, and with such right to raise money by any mode or system of taxation, if
the local legislature of the Province into which the article was so legally imported, and

4 163.] POWERS OF THE PARLIAMENT. 545

on which a revenue was sought to be raised, could so legislate as to prohibit its being
bought and sold and to prevent trade or traffic therein, and thus destroy its comniercial
value and with it all tirade and commerce in the article so prohibited, and thus render it
practicall}- valueless as an article of commerce on which a revenue could be levied.
Again, how can the local legislature prohibit or authorize the sessions to prohibit (by
arbitrarilj' refusing to grant any license) the sale of spirituous liquors of all kinds with-
out coming into direct conflict with the Dominion Legislature on the subject of Inland
Revenue, involving the right of manufacturing and distilling, or making of spirits, &c. . as
regulated by the Act .SI Vic. c 8, and the subsequent Acts in amendment thereof, and
the excise duties leviable thereby, and the licenses authorized to be granted there-
under?" Rule absolute for a mandamus. (Wheeler, C.C. 59. )

In 1878 the Dominion Parliament passed the Canada Temperance Act, 1878, which
was intended to enable the people of cities and counties, throughout Canada, to prohibit
the sale of intoxicating liquors therein, subject to certain exceptions where they might
be required for medicinal or sacramental purposes. The substantial principle of the Act
was the suppression of the liquor traffic in municipal districts, severaUj-, by a separate
vote in each. What was intended to be eflected was local prohibition by local option.
The prohibitions of the Act were to be brought into force in each district by the deter-
mination of the persons entitled to vote at the election of members of Parliament. A
bare majority m as to decide in each voting district. If upon a poll being taken the
majorit}' of electors were against the adoption of the prohibitions of the Act, the
<)uestion could not be re-opened for a period of three years.

In the case of the Queen r. the City of Fredericton (1879), 19 N. Bruns. (3 Pugs,
and Burb. ) 139, the question was raiserl as to the validity of the Canada Temperance Act
of 1878. The Supreme Court of New Brunswick held that the Act was beyond the
power of the Dominion Parliament to pass. It was admitted that the Dominion Parlia-
ment could pass an Act to prohibit the sale of liquor. What was denied was the power
to authorize the inhabitants of each town or parish to regulate or prohibit tlie sale of
liquor within its limits. On appeal to the Supreme Court of Canada this decision was
revei-sed and the validity of the Canada Temperance Act was confirmed.

" With us the Government of the Provinces is one of enumerated powers, which are
.specified in the B.N.A. Act, and in this respect differs from the Constitution of the
Dominion Parliament, which, au has been stated, is authorized ' to make laws for the
peace, order, and good government of Canada in relation to all matters not coming
within the classes of subjects by the Act assigned exclusively to the Legislatures of the
Provinces ; ' and that ' any matter coming within any of the classes of subjects
enumerated shall not l>e deemed to come within the class of matters of a local or private
nature comprised in tlie enumeration of the classes of subjects assigned exclusivel}' to
the Legislatures of the Provinces.' Therefore 'the regulation of trade and commerce '
being one of the classes of subjects enumerated in sec. 91, is not to be deemed to come
within an\' of the classes of a local or private nature assigned to the Legislatures of the
Provinces. To my mind it seems very clear that the general jurisdiction or sovereignty'
which is thus conferred emphatically negatives the idea that there is not within the
Dominion Legislature power or authority to deal with the question of prohibition in
respect to the sale or traffic in intoxicating liquors or any other article of trade or com-
merce. It is said a power to regulate does not include a power to prohibit. Apart from
the general legislative power which I think belongs to the Dominion Parliament, I do
not entertain the slightest doubt that the power to prohibit is within the power to
regulate. It would be sti-ange indeed that, having the sole legislative power over trade
and commerce the Dominion Parliament could not prohibit the sale and traffic if they
deemed such prohibition conducive to the peace, order, and good government of Canada.
There seems to be no doubt on this point in the Cnited .States." (Per Chief Justice
Ritchie, in City of Fredericton Case, 3 S.C.R. (Can.) 505 ; Wheeler, C.C. 61.)

In the case of Russell v. The Queen (1882) 7 App. Cas. 829, the appellaht had been
convicted by the Police Magistrate of Fredericton, New Brunswick, for unlawfully sell-
ing liquor contrary to the provisions of the Canada Temperance Act, 1878. It was
contended that it was not competent for the Parliament of Canada to pass such Act on
the ground that it involved an invasion of jurisdiction exclusively belonging to the
Provincial Legislatures. In deference to the judgment of the Supreme Court of Canada
in the City of Fredericton case, the Supreme Court of New Brunswick refused to quash
35

546 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-i.

the conviction. Russell then appealed to the Privy Council, which sustained the
validit}' of tlie Act.

"The declared object of Parliament in passing the Act is that there should be
uniform legislation in all tlie Provinces respecting the trafhc in intoxicating liquors, with
a view to promote temperance in the Dominion. Parliament does not treat the pro-
motion of temperance as desirable in one Province more than another, but as desirable
everywhere throughout the Dominion. The Act as soon ks it was passed became a law
for the wliole Dominion, and the enactments of the first part relating to the machinerj'
for bringing the second part into force, took effect and might be put in motion at once
and everj'where within it. It is true that the prohibitory and penal parts of the Acts are
only to come into force in any county or city upon the adoption of a petition to that
effect by a majority of electors, but this conditional application of these parts of tlie
Act does not convert the Act itself into legislation in relation to a merely local matter.
The objects and scope of the legislation are still general, viz., to promote temperance bj-
means of a uniform law throughout the Dominion. The manner of bringing the prohi-
bition and penalties of the Act into force, which Parliament has thought fit to adopt,
does not alter its general and uniforni character. Parliament deals with the subject as
one of general concern to the Dominion, upon which uniformity of legislation is
desirable, and the Parliament alone can so deal with it. There is no ground or pretence
for saying that the evil or vice struck at by the Act in question is local or exists only in
one Province, and tliat Parliament, under colour of general legislation, is dealing with a
provincial matter only. It is therefore unnecessary to discuss the considerations which
a state of circumstances of this kind might present. The present legislation is clearly
meant to apply a remedy to an evil which is assumed to exist throughout the Dominion,
and the local option, as it is called, no more localizes the subject and scope of the Act
than a provision in an Act for the prevention of contagious diseases in cattle tliat a
public officer should proclaim in what district it should come into efi'ect, would make
the statute itself a mere local law for each of these districts. In statutes of this kind
the legislation is general, and the provision for the special application of it to particular
places does not alter its character. Their Lordships having come to the conclusion that
the Act in question does not fall within any of the classes of subjects assigned
exclusively to the provincial Legislatures, it becomes unnecessary to discuss the further
question whether its provisions also fall within any of the classes of subjects enumerated
in sec. 9L In abstaining from this discussion, they must not be understood as intimating
any dissent from the opinion of the Chief Justice of the Supreme Court of Canada and
the other judges, who held that the Act, as a general regulation of the traffic in intoxi-
cating liquors throughout the Dominion, fell within the class of subject, ' the regulation
of trade and commerce,' enumerated in that section, and was. on that ground, a valid
exercise of the legislative power of the Parliament of Canada." (Per Sir Montague E.
Smith, in Russell v. The Queen, 7 App. Ca. 841-2.)

The next important case involving the interpretation of the Canadian Constitution
was that of Hodge v. The Queen (1883) 9 App, Ca. 117. The appellant had been con-
victed for unlawfully keeping open a billiard-room in connection with a tavern in
Toronto, Ontario, during the time prohibited by the Ontario Liquor License Act, and
contrary to the resolutions of the License Commissioners. The operation of this Act
was confined to municipalities within the Province of Ontario. License Commissioners
were appointed to meet in each municipality, and were empowered to pass, under the
name of " resolutions," by-laws or rules defining the conditions and qualifications
requisite for obtaining licenses for the sale bj' retail of intoxicating liquors and for
limiting the number of licenses, and to impose penalties for the infraction of their
resolutions. The appellant challenged the validity of the Provincial law. The Privy
Council sustained the validity of the law, on the grounds that the powers conferred by
the Act in question were in the nature of police or municipal regulations of a local
character for the good government of taverns, and calculated to preserve public decencj'
and to repress drunkenness and disorderly conduct. As sucli they could not bo said to
interfere with the general regulation of trade and commerce which exclusively belonged
to the Dominion Parliament, and they did not conflict with the provisions of the Canada
Temperance Act, which had not yet been locally adopted. There was therefore no
repugnancy between the Provincial law and the Dominion law.

In 1883-4 the Dominicm Parliament passed amending Liquor License Acts designed
to supplement and enforce the Canada Temperance Act, 1878. The Government of the
Dominion was authorized to issue licenses, and no person who was not the holder of a

§ 163.] POWERS OF THE PARLIAMENT. 547

license was to be allowed to deal in intoxicating liquors. Varioas classes of licenses
were provided for ; snch as wholesale licenses, saloon licenses, hotel licenses and vessel
licenses. Provision was made for limiting the number of licenses to be issued in the
various licensing districts. In those parts of Canada where the Temperance Act had not
been adopted by local option, it was intended to regulate the traffic by reducing the
number of licenses. In the case of the Governor-General of the Dominion v. the Four
Provinces, 1885 (Wheeler, C.C. 144), the Privy Council was called upon to consider the
constitutionality of the amending Acts of 1883-4. Their Lordships decided that both
the amending Acts were not within the legislative authority of the Parliament of
Canada.

The latest and most important Canadian case dealing with the constitutional power
of the Dominion and the Provinces, is that of the Att.-Gen. of Ontario v. the Att -Gen.
of the Dominion (1896), App. Cas. 348. The principal question raised in that case was
whether the Legislature of Ontario had jurisdiction to pass the Act 53 Vic. No. 58, as
explained by Act 54 Vic. No. 46, intituled " An Act Respecting Local Option in the
Matter of Liquor Selling." This law gave the Council of every city, town, or village,
authority to prohibit the sale by retail of intoxicating liquors, provided that by-laws
intended to prohibit the sale should be submitted to and approved by the electors of the
municipality. The Supreme Court of Canada held that the Act was invalid. (24 S.C.R.
Can. 170.) Leave to appeal to the Privy Council was granted. Their Lortlships held
that the liquor law prohibitions authorized by the Legislature of Ontario were within
the powei-s of a Provincial Legislature, but such prohibitions would be inoperati ve in
any locality which had adopted or might hereafter adopt the local option provisions of
the Canada Temperance Act.

''If the prohibitions of the Canada Temperance Act had been made imperative
throughout the Dominion, their Lordships might have been constrained by pre\iou8
authority to hold that the jurisdiction of the Legislature of Ontario to pass sec. 18, or
any similar law, had been superseded. In that case, no Provincial prohibitions, such as
are sanctioned by sec 18, could have been enforced by a municipality, without coming
into conflict with the paramount law of Canada. For the same reason Provincial prohi-
bitions in force within a particular district will necessarily become inoperative, whenever
the prohibitory clauses of the Act of 1886 have been adopted by that district. But their
Lordships can discover no adequate grounds for holding that there exists repugnancy
between the two laws in the districts of tlie Province of Ontario where the prohibitions
of the Canadian Act are not, and may never be. in force. In a district which has, by the
votes of its electors, rejected the second part of the Canadian Act. the option is abolished
for three \'ears from the date of the poll ; and it hardly admits of doubt, that there could
be no repugnancy whilst the option given b}- the Canadian Act was suspended. The
Parliament of Canada has not, either expressly or by implication, enacte<l, that so long
as any district delays or refuses to accept the prohibitions which it has authorize!, the
Provincial Parliament is to be debarretl from exercising the legislative authority given
by sec. 92, for the suppression of the drink traffic as a local evil. Any such legislation
would be unexampled ; and it is a grave question whether it wonld be lawful. Even if
the provisions of sec. 18 had been imperative, the\- would not have taken away or
impaired the right of any district in Ontario to adopt, and thereby bring into force, the
prohibitions of the Canadian Act. Their Lordships, for these reasons, give a general
answer to the seventh question in the affirmative. They are of opinion that the Ontario
Legislature had jurisdiction to enact sec. 18, subject to this necessary qualification, that
its provisions are or will become inoperative in any district of the Province, which has
already adopted, or may subsequentlv adopt, the second part of the Cana<^la Temperance
Act of lS)86 " (Per Lord Watson. 1896, Appeal Cases .348.)

*' Severn's case was reviewed by the Privy Council, in 1885, in the Bank of Toronto
V. Lambe (12 App. Cas. 575, 586). In that case the Judicial Committee decided that a
Province could impose direct taxation on commercial corporations carrying on their
business in the Province. Lord Hobhouse said : ' Since the Severn case was decided the
question has been more carefully sifted.' The words ' regulation of trade and commerce'
are imieed very wide, and in Severn's case it was the view of the Supreme Court that
they operated to invalidate the license duty which was there in question. But since
that case was decided the question has been more completely sifted before the Committee
in Citizens Insurance Co. v. Parsons." (Wneeler, C.C. p. 54.)

Does Regulation Include Prohibition ? — " It is said a power to regulate does
not include a power to prohibit. Apart from the general legislative power which I

548 COMMENTARIES ON THE CONSTITUTION. [Sec. 6l-i.

think belongs to the Dominion Parliament, 1 do not entertain the slightest doubt that
the power to prohibit is within the power to regulate. It would be strange indeed that,
having the sole legislative power over trade and commerce, the Dominion Parliament
could not prohibit the importation or exportation of any article of trade and commerce,
or, haying that power, could not prohibit the sale and traffic if they deemed such
prohibition conducive to the peace, order and good government of Canada. There seems
to be no doubt on this point in the United States." (Per Ritchie, C.J,, Wheeler, C.C.
p. tjl.)

" The object of the Canada Temperance Act of 1886 is not to regulate retail
transactions between those who trade in liquor and their customers, but to abolish all
such transactions within every provincial area in which its enactments have been
adopted by a majority of the local electors. A power to regulate naturally if not
necessarily assumes, unless it is enlarged by the context, the conservation of the thing
which is to be made the subject of regulation. In that view, their lordships are unable
to regard the prohibitive enactments of the Canadian statute of 1886 as regulations of
trade and commerce. They see no reason to modify the opinion which was recently
expressed on their behalf by Lord Davey in Municipal Corporation of the City of Toronto
V. Virgo, 7 App. Ca. 93." (Per Lord Watson in Att.-Gen. of Ontario v. Att.-Gen. of
the Dominion, 1896, App. Ca. p. 363.)

" Their lordships think there is marked distinction to be drawn between the
prohibition or prevention of a trade and the regulation or governance of it, and indeed a
power to regulate and govern seems to imply the continued existence of that which is to
be regulated or governed.'' (Per Lord Davey in the Municipal Corporation of the City
of Toronto!;. Virgo, 1896, App. Ca. 93.)

" It is not impossible that the vice of intemperance may prevail in parti,cular
localities within a Province to such an extent as to constitute its own cure by restricting
or prohibiting the sale of liquor a matter of a merely local or private nature, and
therefore failing prima Jacie within No. 16. In that state of matters, it is conceded that
the Parliament of Canada should not imperatively enact a prohibitory law adapted and
confined to the requirements of localities within the Province where prohibition was
urgently needed. ' (Per Lord Watson in the Att.-Gen. of Ontario i7. Att.-Gen. of the
Dominion, 1896, App. Ca. p. 365.)

It is to be noticed that the legislative power given to the Parliament of the
Commonwealth is not a power to make laws with respect to " the regulation of" trade
and commerce, but a power to make laws " with respect to trade and connnerce." (See
Historical Note, p. 515, and Note, § 162, supra.)

Liquor Laws Under This Constitution.— The Federal Parliament is not equipped
with the same general control over the liquor traffic as that exercised by the Parliament
of Canada in passing the Canada Temperance Act, 1878. The Parliament of Canada has
power to regulate trade and commerce generally ; it is not confined to inter-state and
external commerce. The Parliament of the Commonwealth has power to deal only with
trade and commerce (1) with other countries and (2) among the States. This excludes
the trade and commerce which begins and ends in a State. A federal law authorizing
the establishment of a system of local option, under which the sale of liquor could be
prohibited in defined localities, would not be a law relating to trade and commerce
"among the States," but a law relating to trade and commerce in those defined localities
"within the States." In addition to this the power to legislate concerning the liquor
traffic is expressly reserved to the States as a State right by section 113 of the
Constitution, which provides that "all intoxicating liquids passing into a State or
remaining there for use, consumption, sale or storage, shall be subject to the laws of the
State, as if such liquids had been produced in the State." (See Notes, § 456, infra.)

Whilst the Federal Parliament has no power to directly prohibit the manufacture
of intoxicants or to establish the local option system in any State, it has the exclusive
power to impose duties of customs and excise, which will enable it to tax heavily or
lightly all intoxicating liquids imported into the Commonwealth or produced in any
State. This power may be exercised in a manner calculated to influence the liquor
traffic in a material degree (sec. 90). It has also the exclusive authority to grant
bounties on the production or import of goods (sec. 90). This will enable it, if thought
necessary, to directly encourage the manufacture of intoxicants b}' a pecuniary subsidy.
The Parliament of a State would probably be enabled, under sec. 113, to prohibit the

§ 163.] POWERS OF THE PARLIAMENT. 549

production or sale of intoxicants within the State limits, but should the Federal
Parliament pass a law oflFering bounties for the production or export of those intoxicants,
an inconsistency would arise, and the State law in that case would be invalid to the
extent of the inconsistency. (See sec. 110 and Note, § 456, infra.)

51. (ii.) Taxation^*^ ; but so as not to discriminate between
States or parts of States :

Historical Note. — The Constitution of the United States empowers Congress " to
lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the
common defence and general welfare of the United States ; but all duties, imposts, and
excises shall be uniform throughout the United States." (Art. I., sec. 8, subs. 1.) It
also provides that "direct taxes shall be apportioned among the several States which
may be included within this Union according to their respective numbers." (Art I.,
sec. 2, subs. .3.) Sec. 91 of the British North America Act gives the Parliament of
Canada exclusive power in respect of " the raising of money by any mode or system of
taxation " (subs. 3) ; whil.st sec. 92 gives to the P^o^^ncial Legislatures exclusive power
in respect of " direct taxation within the Province in order to the raising of a revenue
for provincial purposes " (subs. 2).

Earl Grey's Committee of the Privy Council, in 1849, recommended that the General
Assembly should have power to make laws with respect to " the imposition of duties
upon imports and exports " (p. 85, supra). Wentworth's Committee in 1853 specified
•' Intercolonial tariffs " as a federal subject (p. 91, supra).

In the Commonwealth Bill of 1891, the taxation power was contained in two sub-
clauses : — " (2) Customs and excise [and bounties], but so that duties of customs and
excise [and bounties] shall be uniform throughout the Commonwealth, and that no tax
or duty shall be imposed on any goods exported from one State to another. (3)
Raising money by any other mode or system of taxation ; but so that all such taxation
shall be uniform throughout the Commonwealth." In Committee, some member's
doubted the wisdom of giving the Federal Government general powers of direct
taxation ; but the danger of limiting the taxing powers was apparent, and the sub-clause
was agreed to. (Conv. Deb., Syd., 1891, pp. 670-9.)

At the Adelaide session both these sub-clauses were adopted. In Committee, there
was some discussion about the words prohibiting a tax on goods exported from one State
to another. (Conv. Deb., Adel., pp. 761-7.)

At the Sydney session, amendments by the Legislative Council of New South
Wales, to omit the taxing powers, were negatived. There were some discussion as to
export duties, and the meaning of the word "excise." (Conv. Deb., Syd., 1897, pp.
1065-8.)

At the Melbourne session, before the first report, the taxation power was thrown
into one sub-clause thus : — " Taxation, but so that all taxation shall be uniform through-
out the Commonwealth, and that no tax or duty shall be imposed on any goods passing
from one State to another." Subsequently, however, it was thought that a doubt might
arise as to the meaning of "uniform," in view of Mr. Justice Field's judgment in the
Income Tax cases " (Pollock v. Farmers' Loan and Trust Co., 157 U.S. 586), and the
sub-clause was amended to read: — "Taxation, but not so as to discriminate between
States or parts of States, or between persons or things passing from one State to
another." ^Conv. Deb., Melb., pp. 1990, 2397.) After the fourth report, verbal amend-
ments were mafle — the last words being omitted as superfluous.

550 COMMENTARIES ON THE CONSTITUTION. [See. 61 -i'.

§ 164. « Taxation."

Nature of the Taxing Powkr. — The origin of modern taxation may be traced to
the feudal aids, burdens and services originally exacted by the Crown from its tenants-
in-chief. After property in land underwent subdivision, and new kinds of property
sprang into existence, taxation became less feudal in its character, and the ancient aids,
burdens and services were commuted into money grants and subsidies freely and
voluntarily voted by Parliament representing the taxpayers. (May, 10th ed. p. 553.^
Taxation may be now defined as any exaction of money or revenue, by the authority
of a State, from its subjects or citizens and others within its jurisdiction, for the purpose
of defraying the cost of government, promoting the common welfare, and defending it
against aggression from without. Taxation may assume various shapes, and be known
by different names ; thus, taxes on land, its capital or annual value = a land tax ; taxes
on fixtures annexed to land = a hearth tax, a house tax ; taxes on goods, chattels, and
commodities generally = duties of customs and duties of excise, imposts ; taxes on the
transfer of property = registration fees and succession duties ; taxes on passing over roads
or along rivers = tolls ; taxes on individuals = a poll tax, capitation tax; taxes on the
produce of property generally, as well as on the earnings of labour = income tax ; taxes
on certain trades and occupations = license fees.

The term taxation covers every conceivable exaction which it is possible for a
government to make, whether under the name of a tax, or under such names as rates,
assessments, duties, imposts, excise, licenses, fees, tolls, &c. (Hylton v. United States,
3 Dall. 171 ; United States v. Tappan, 11 Wheat. 419.)

Limits of the Taxing Power. — From the foregoing definition it appears that the
taxing power of the Federal Parliament is very wide and comprehensive, and that it is
capable of operating against every individual and on every conceivable form of realizable
property. At the same time there are certain limitations, qualifications and restraints
to be found in or inferred from several sections of the Constitution, which may be here
grouped in the sequence in which they occur, for the purpose of showing how the general
grant of taxing power is cut down.

Discriminations. — The Federal Parliament may not impose a tax which discriminates
between States or parts of States (s. 51 — ii. ) This is a limitation which has been
provided for federal reasons, viz. , for the protection of States which might not possess
sufficient strength in the Federal Parliament to resist the imposition of a system of
taxation designed to press more heavily on people or property in some States than on
people or property in other States. To discriminate obviously means to make differences
in the nature, burden, incidence and enforcement of taxing law ; to impose a high tax
on commodities or persons in one State and a low tax on the same class of commodities
or persons in another State, would be to discriminate. Such discriminations are forbidden,
and uniformity of taxation throughout the Commonwealth is an essential condition of
the validity of every taxing scheme. Any deviation from this rule would invalidate a
tax. The provision against discrimination is practically the same in substance as the
requirement of Art. 1, s. 8, sub-s. 1, of the United States Constitution that " all duties,
imposts and excises shall bo uniform throughout the United States. It has been held
in that country that " uniform " means at the same rate on the same article wherever
found. (Head Money Cases, 112 U.S. 580; Burgess, Pol. Sci. ii. 151.)

Mode of Exercising the Taxing Power. — Next, there is an important regulation
or qualification of the mode in which the taxing power is to be exercised b}- the
Parliament. Laws imposing taxation must deal only with the imposition of taxation ;
any provision in a tax-raising law, dealing with matter foreign to the tax, is declared to
be a nullity, of no effect (sec. 55). Kindred to this is the mandate that laws imposing
taxation must deal with one subject of taxation only. To this there is an exception in
the case of customs duties and excise duties. A law imposing customs duties may
include any number of items of taxation, and a law imposing excise duties may deal with

§ 164] POWERS OF THE PARLIAMENT. 551

any number of items of taxation. It would be very inconvenient, and almost nnwork-
able, to require a separate Act for every item in the tariff. With respect to other taxes
the rule is that each tax must be passed by a separate law.

Restraixt on the Taxixg Powkr. — Whilst the Federal Parliament has general
power to legislate with respect to trade and commerce, and to lay and collect taxes on
trade and commerce, throughout the Commonwealth, there are two fundamental pro-
hibitions : It cannot impose a tax on any property belonging to a State (sec. 114) ; and,
it cannot tax inter-state trade and commerce — that is, trade and commerce flowing from
one State into another (sec. 92). The Federal Parliament may impose excise duties on
the production of commodities throughout the Commonwealth, and those excise duties
may be collected on the taxable articles wherever and whenever they are found, but it
may not impose a tax on the carriage or transport of those articles or of any commodities
from one State into another. Nor may it tax the commercial instrumentalitie.s, used in
connection with inter-state business. This is conclusively establisheti by sec. 92, which
declares that, on the imposition of uniform duties of customs, trade, commerce, and
intercourse among the States, whether by means of internal carriage or ocean navigation,
" shall be absolutely free." Cases illustrating the principle of equality' and uniformity
of taxation required by the Constitution of the United States of America will be found in
Cooley's Cons. Lim. 6th ed. pp. 608-18.

Prefekkxces. — Another restraint on the taxing power of the Feileral Parliament is
contained in sec. 99, which provides that "The Commonwealth shall not, by any law
or regulation of trade, commerce or revenue, give preference to one State, or any part
thereof, over another State or any part thereof." Without this prohibition a Federal
revenue law or a Federal commercial law might be made so favourable in its incidence,
and so mild and ineffective in its enforcement, in one State, as to have the effect of
drawing trade and commerce from another State to that State. Such a preference would,
under this section, be as unlawful as a discrimination under s. 51 — ii.

St.\te Propekty axd Officers. — The Commonwealth is by section 114 prevented
from imposing a tax on property of any kind belonging to a State. It may be argued,
by necessary implication, that the Federal Parliament could not levy a tax on the salaries
of officers of a State Government, because it would thereby conflict with the laws of a
State made in pursuance of the powers reserved to it by the Constitution. (Buifington
V. Day, 11 Wall. 113 ; Dobbins v. Erie County, 16 Pet. 4,3o.)

Area of Federal Taxation. — The power of the Federal Parliament to lay and
collect taxes is co-extensive with the limits of the Commonwealth. It has therefore
power to impose and enforce taxation within the Territories as well as within the States.
The taxing power of the Federal Parliament isesclusive within Federal territory forming
no part of a State. (Loughborough v. Blake, 5 Wheat 317.)

Taxing Power Not Exclusive. —The power of taxation vested in the Federal
Parliament is not exclusive, except to the extent and in respect of matters as to which
it is deelared exclusive by the Constitution, or is so by necessary implication. The only
taxes which by express words are exclusively vested in the Federal Parliament are duties
of customs and excise (sec. 90). Upon the imposition of uniform duties of customs the
power of the Parliament to impose duties of customs and excise becomes exclusive.
With respect to other subjects of taxation the States possess the concurrent power of
levying taxes, within their jurisdiction, subject to the restrictions, (1) that they cannot
tax public property of any kind belonging to the Commonwealth (s. 114) ; (2) that by
necessary implication they cannot tax any of the constitutional means or instruments
employed by the Commonwealth (McCulloch r. Maryland, 4 Wheat. 316); (3) that
they cannot tax the compensation or official income of officers of the Commonwealth.
(Dobbins i-. Erie County, 16 Pet. 435; Leprohou v. City of Ottowa, 1878, 2 Ontario
App. Rep. 522 ; Wheeler, C.C. p. 70.

552 COMMENTARIES ON THE CONSTITUTION. [Sec.51-ii.

Power of States to Tax Corporations. — Important questions may hereafter be
raised as to the power of States to tax banks, insurance companies, and other corpora-
tions established under the provisions of Federal law. Several leading American and
Canadian cases may be here cited and compared, with the prefatory observation that
the American cases will be found more applicable to the Constitution of the Common-
wealth than some of the latest Canadian decisions. The first important case on this
branch of Federal law was that of McCuUoch v. Maryland, 4 Wheat. 316, in which it
was held that a law of the State of Maryland imposing a tax upon notes issued by a
branch of the Bank of the United States, chartered by Federal law and established in
that State, was unconstitutional. It was held to be a tax on the operations of the bank,
and therefore a tax on a means or instrumentality employed by the Government of the
Union in pursuance of the Constitution. It was said that the power to tax implied the
power to impair, and possibly to destroy, an institution established by Federal
authority. As such it was an abuse and a usurpation of power which the people of a
single State could not give or exercise through its legislature. But it was carefully
stated that the decision applied only to a tax on the operations of tlie bank, not to a tax
on its property. " This opinion does not deprive the t>tates of any resources which they
originally possessed. It does not extend to a tax paid by the real property of the bank,
in common with the other real property within the State, nor to a tax imposed on the
interest which the citizens of Maryland may hold in this institution, in common with
other property of the same description throughout the State. But this is a tax on the
operations of the bank, and is, consequently, a tax on the operation of an instrument
employed by the Government of the Union to carrj^ its powers into execution. Such a
tax must be unconstitutional." (Per Marshall, C. J., McCulloch v. Maryland, 4 Wlieat.
p. 436. See Union Pacific R. Co. v. Peniston, 18 Wall. 5.) Referring to the decision in
McCulloch V. Maryland, William Pinckney is reported to have said that in it he saw
" a pledge of the immortality of the Union ; " whilst Kent declares that " a case could
not be selected, from the decisions of the Supreme Court of the United States, superior
to this one of McCulloch v. The State of Maryland for the clear and satisfactory manner
in which the supremacy of the laws of the Union have been maintained by the Court,
and an undue assertion of State power overruled and defeated." (Kent, Comm. I. 427.)

This principle was afterwards followed and affirmed in other cases. In Osborn
V. The Bank of the United States, 9 Wheat. 738, the Court adhered to its prior decision,
ruling that a State could not tax the franchise of the Bank of the United States. In
Dobbins v. Erie County, 16 Pet. 435, it was ruled that the compensation of an officer of
the United States is fixed by the laws thereof, and a State law seeking to tax sucli com-
pensation is unconstitutional, because it conflicts with the law of Congress made in pur-
suance of the powers conferred by the Constitution. The rule of exemption of Federal
agencies and instrumentalities from State taxation was, in a modified form, applied in
the case of California v. Central Pacific R. Co., 127 U.S. 1, in which it was decided that
a law of California, by which the franchise or business conferred by Act of Congress
upon a railroad corporation was taxed, was repugnant to the law and Constitution of
the United States ; that franchises conferred by Congress cannot be taxed bj^ States
without the consent of Congress.

An attempt was unsuccessfully made to extend the exemption to other cases. In
Thomson v. Union Pacific R. Co., 9 Wall. 579, it was held that a railroad constructed
under the direction and by authority of Congress, for the postal and military purposes of
the United States, but the stock of which was owned by private parties, was not exempt
from taxation by the States through which it ran, in the absence of any legislation bj' Con-
gress declaring sucli exemption. In the Union Pacific R. Co. v. Peniston, 18 Wall. 5,
the doctrine of exemption was not applied to the case of a State tax upon the real and
personal estate of the Union Pacific R. Co., a corporation chartered by Congress and the
whole of whose stock was owned by individuals, but which Congress assisted by donations
and loans, over which it reserved and exercised special rights, and which, among other

§ 164.] POWERS OF THE PARLIAMENT. 553

things, was bound at all times to transmit despatches and transport mails and munitions
of war for the government whenever required. The Court expresslj' distinguished
this case from McCulloch v. Maryland, mpra, on the ground that the tax here involved
was not a tax upon the operations of the company, but only a tax upon the property
of the company, which did not interfere with the efficiency of the governmental agency.

Decisions similar in principle to that of McCulloch v. Maryland have been given in
Canada, under the Constitution of the Dominion, notwithstanding the fact that it differs
from that of the United States in aissigning one area of legislative power exclusively to
Federal authority, and another area exclusively to the Provinces. In Leprohon v. City
of Ottawa (1877-8), 40 Upper Canada Rep. 478, the Ontario Court of Appeal gave a
decision somewhat similar to that of Dobbins v. Erie Company, overruling the judgment
of a majority of the Court of Queen's Bench, and confirming the judgment of Moss, J.,
at the trial, holding unanimously that a provincial legislature cannot impose a tax upon
the official income of an officer of the Dominion government. All the judges who sup-
ported the \'iew of the Court of Appeal based their reasoning upon the principle affirmed
in McCulloch v. Maryland. This case was followed in 1881 in exparU Owen, 20 N.
Bruns. (4 Pugs, and Burb. ) p. 487, in which the Supreme Court of New Brunswick held
that the income of a Federal officer in the Customs, who resided in the city of St. Johns,
was not subject to provincial taxation. In Cote v. Watson, 1877, 3 Quebec L.R. 157, it
was held that the Quebec License Act, 1870, was ultra vires, in so far as it sought to
impose a tax on the proceeds of sale of an insolvent's effects, when made under the
Dominion Insolvent Act of 1869, 32 and 33 Vic. c. 16 (the said tax being in the form of
a penalty recoverable against the Dominion assignee in insolvency for selling the goods
of the insolvent by auction without a license). In Evans v. Hudon, 1877, 22 Lower
Can. Jur. 268, it was decided that a provincial legislature has no power to declare
liable to seizure the salaries of employees of the Federal Government. In 18S4 it was
held, in the case of Ackman v. Town of Moncton, 24 Neu Bruns. 103, that the proWncial
legislature could not empower a municipality to levy a tax on the salary of an employee
of the Intercolonial railway, received by him from the Dominion government. In
Regina v. Bowell (1896) 4 Brit. Columb. 498, Drake, J., held that the imposition of a
poll tax upon an officer of the Dominion government — viz., a collector of customs for the
port of Vancouver — was ultra vires. In Hilliraore v. Colboume, 1896, 32 Can. L.J.
(X.S. )201, the case of Leprohon r. City of Ottawa was distinguished by the Supreme
Court of Xova Scotia. (Lefroy, Legislative Power in Canada, p. 677.)

The soundness of some of these decisions under the Canadian Constitution seems,
according to the opinion of Mr. Lefroy (Legisl. Power in Canada, p. 677) to have been
shaken by the judgment of the Priv}- Council in the appeal case of the Bank of Toronto
V. Lambe, 12 App. Cas. 575, upholding the validity of an Act passed by the Quebec
legislature, whereby a direct tax was imposed on the paid-up capital of every bank doing
business in the ProN-ince. Against the tax it was argued that the provincial legislature
might lay on taxes so heavy as to crush a bank out of existence, and so nullify the power
of the Dominion Parliament to erect banks. The principle of McCulloch v. Marj-land was
relied on in support of the argument against the tax. In reviewing the authorities
Lord Hobhouse said : —

" Their lordships have been invited to take a verj- wide range on this part of the
case, and to apph- to the construction of the Federation Act the principles laid down for
the United States by Chief Justice Marshall. Every one would gladlv accept the
guidance of that great judge in a parallel case. But he was dealing with the Constitution
of the United States. Under that constitution, as their lordships understand, each
State may make laws for itself, uncontrolled by the federal power, and subject onlv to
the limits placed by law on the range of subjects within its jurisdiction. In such a
constitution, Chief Justice Marshall found one of those limits at the point at which the
action of the State legislature came into conflict with the power vested in Congress.
The appellant invokes that principle to support the conclusion that the Fe<leration Act
must be so construed as to allow no power to the provincial legislatures under section
92, which may by possibility, and if exercised in some extravagant way, interfere with

554 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-ii.

the objects of the Dominion in exercising their powers under section- 91. It is quite
impossible to argue from the one case to the other. Their lordships have to construe the
express words of an Act of Parliament which makes an elaborate distribution of the
whole field of legislative authority between two legislative bodies, and at the same time
provides for the federated Provinces a carefully balanced constitution, under which no
one of the parts can pass laws for itself except under the control of the whole acting
through the Governor-General. And the question they have to answer is whether the
one body or the other has power to make a given law. If they find that on the due
construction of the Act a legislative power falls within section 92, it would be quite
wrong of them to deny its existence because by some possibility it may be abused, or
may limit the range which otherwise would be open to the Dominion Parliament.'
{12 App. Cas. 587.)

In the same direction was the decision of Weatherbe, J., in the Town of Windsor v.
Commercial Bank of Windsor, 3 R. and G. (Nov. Scot.) 420, to the effect that "all
property, except that of the Dominion or the Provinces, may be made equally liable to
•assessment for municipal purposes by provincial legislation." In the case of a bank
doing business in Windsor under the General Banking Act of the Dominion of Canada,
which held, in addition to real and other personal property, notes of the Dominion of
Canada, as a portion of its cash reserve required by the Dominion Act, it was decided
that the assessors for the town of Windsor were right in assessing on the Dominion notes,
they not being the property of the Dominion. It must be noticed that the decision of
the Privy Council in the Bank of Toronto v. Lambe turned on the distinction between
the American and Canadian Constitutions ; the validity of the reasoning in the case of
McCulloch V. Maryland was not impugned. The difference between the two Constitu-
tions was thus referred to by Palmer, J., in Ackman v. Town of Moncton, 24 New
Bruns. 103:—

" In the United States, the States themselves granted the Federal Government its
power of legislation on the specific subjects, and consequently parted with it and all
additional power to enable their grantees to legislate generally and effectually on those
subjects, and they did not reserve out of such grant to themselves power to legislate on
any specified subject exclusively ; and, therefore, there is nothing to prevent the
operation of such grant so as to include all that may be fairl}' necessary to enable the
Federal Legislature to legislate fully and effectually with reference to all the subjects
granted, and to tliat extent to operate as a prohibition of any legislation by the grantors
that would operate to affect such subject ; while with us the powers to both are given by
one instrument, and all of them are made exclusive, and in construing such instrument
tliere does not appear to be anj' more reason for restricting provincial legislatures from
legislating on such subjects exclusively assigned to them, than the Dominion Parliament
from legislating on subjects exclusively put under its control. This construction not
only prevents the a fortiori deduction from the principle of the American cases, but
makes the principle of them, .so far as they affect the questions of conflict of powers
between the Federal and State legislatures, entirely inapplicable to the construction of
our Constitution."

Further, the same learned judge said that in his opinion cases decided by the courts
of the United States, under that Constitution, were generally of little value on questions
of conflict of power between the Dominion Parliament and the provincial legislatures
under the British North America Act. This arises from the fact that, bj' reason of their
having certain specified subjects of legislation exclusively assigned to them, the provincial
legislatures of Canada cannot be so restricted in their actions as the State legislatures
under the American Constitution. (Lefroy, Leg. Pow. in Canada, p. 667.) The States
of the Commonwealth occupy positions corresponding to those of the American Union,
the mode of distribution of powers under the Constitution of the Commonwealth
resembling the American rather than the Canadian model ; consequently the American
cases are more valuable as aids in the interpretation of the Constitution of the Common-
wealth than they have been found in the case of the Dominion,

There is one obvious difference between cases such as McCulloch v. Maryland,
Dobbins v. Erie County, and Leprohon v. City of Ottawa, in which attempts were made
to tax in.stitutions and persons coming within the definition of "Federal Agencies and
Instrumentalities," and cases such as Thomson v. Union Pacific R. Co., Union Pacific
R. Co. V. Peniston, The Bank of Toronto i: Lambe, in which the bodies held to l>e

-§164.] POWERS OF THE PARLT AM EXT. 555

taxable bj- the States and by the Pro\inces, although created by federal law, were
-clearly uot agencies and instrumentalities employed in the execution and maintenance of
federal authority.

Examples of Fkderal Taxisg Power. — In addition to the numerous cases of
commercial and trading taxes cited in our review of sub-sec. i. (trade and commerce), the
following may be added as illustrations of the general taxing power : —

"If we measure the power of taxation residing in a State, by the extent of
sovereignty which the people of a single State possess and can confer on its government,
we have an intelligible standard, applicable to every case to which the power maybe
applied. . . . We are relieved, as we ought to be, from clashing sovereignty ; from
interfering powers ; from a repugnancy between a right in one government to pull down
what there is an acknowledge right in another to build up ; from the incompatibility of
a right in one government to destroy what there is a right in another to preserve. \Ve
are not driven to the perplexing inquiry, sounht for the judicial department, what degree
of taxation is the legitimate use, and what degree may amount to the abuse of the power.
The attempt to use it on the means employed by the government of the Union, in pur-
suance of the Constitution, is itself an abuse, because it is the usurpation of a power
which the people of a single State cannot give " (Marshall, C.J. , in McCulloch r. Mary-
land, 4 ^'heat. pp. 429-;{0.)

The doctrine which exempts the instruments of the Federal government from State
taxation, is founded on the implied necessitj' for the use of such instruments by the
government. Legislation which does not impair the usefulness of such instruments to
serve the government is not within the rule of exemption. (National Bank v, Kentucky,
9 Wall. 353. See Pomeroy, Const. Law, p. 25;^.)

The exemption of agencies of the Federal Government from taxation by the States
is dependent, not upon the nature of the agents nor upon the mode of their constitution,
nor upon the fact that thej' are agents, but upon the effect of the tax ; that is, upon the
question whether the tax does in truth deprive them of power to serve the government
as they were intended to serve it, or hinder the etficient exercise of their power. A tax
upon their property- mereh', haNnng no such necessary" effect, and leaving them free to
discharge the duties they have undertaken to perform, may be rightfully laid by the
States ; but a tax upon their opei-ations, being a direct obstruction to the exercise of
Federal powers, may not be. This doctrine was applied to the case of a tax by a State
upon the real and personal property, as distinguished from its franchises, of the Union
Pacific railway company — a corporation chartered by Congress for private gain, and all
whose stock was owned by individuals, but which Congress assisted bj- donations and
loans, and over which it reserved and exercised many special rights, and which amongst
other things was bound at all times to transmit despatches and transport mails, troops,
muuitions of war, &c., for the government whenever so desired. (BaUroad Co. r.
Penistou, 18 Wall. 5. See Pomeroy, Const. Law, 253; Baker, Annot. Const, p. 172.)

" The principles to be deduced from the [American] cases appear to be, that the
National government and the State governments are, as it M-ere, distinct sovereignties ;
that the means and instrumentalities necessary for the carrying on of either government
are not to be impaired by the other ; that as the power to tax involves the power to
impair, the e.vercise of such a power by the one government on the income of the officers
of the other is inconsistent with independent sovereignty of the other ; and that in such
cases exemption from taxation, although not expressed in the national Constitution,
exists by necessary implication," (Harrison, C.J., in Leprohon r. City of Ottawa, 40
L^pper Canada Rep. 478. )

" The Supreme Court, however, has declared that the general principles of the Con-
stitution forbid Congress to tax the necessary governmental instrumentalities of the
States, such as the salaries of officers and the revenue of municipal corporations, on the
ground that such a power would enable the Congress to destroy the States, which nothing
short of the amending power, the sovereignty-, should be able to do in a Federal system
of government. The United States courts determine, of course, in what these necessary
instrumentalities, in any particular case, consist." (Collector r. Day, 11 Wall. IIS";
cited Burgess, Political t^c. II. p. 151.)

A Federal law imposing a tax on the sale of lottery tickets is valid, although their
.sale is prohibited by State law. (License Tax Cases, 5 Wall 462 ; cited Baker, Annot
Const, p. 16.)

A Federal excise tax, imposed on a license to manufacture and sell intoxicating
liquors, is no bar to a prosecution under State laws prohibiting such manufacture and sale
within the State. (License Tax Cases, 5 Wall. 462 ; Pervear r. Commonwealth, 5 Wall.
475. Id. )

A. Federal law imposing a tax on State banks or banking associations held valid.
(National Bank v. United States, 101 U.S 1. Id)

556 COMMENTARIES ON THE CONSTITUTION. [Sec. 51

A Federal tax on distilled spirits is not unconstitutional. It is in the nature of aa
excise, and the only limitation on the power of Congress in the imposition of taxes of
this character is that they shall " be uniform throughout the United States." (United
States V. Singer, 15 Wall. Ill ; Same r. Van Buskirk, 15 Wall. 121 Id. p. 17.)

The Act imposing the succession tax is valid. It is neither a tax on land nor a
capitation tax, although it is made a lien on the land to enforce its collection. Scholev
V. Hew. 23 Wall. 331. Id.)

In the exercise of this power Congress may raise money in any way not forbidden by
the Constitution, and as a means thereto it may tax employments. (United States v.
Angell, II Fed. Rep. 34. Id.)

No Apportionment OF Taxes.— The taxing power of Congress is seriously hampered
by Art. I. sec. 3, of the Constitution, which provides that "direct taxes" shall be
apportioned among the several States according to their respective numbers. In 1894,
Congress passed an unapportioned income tax. The tax was imposed on the annual
income of individuals exceeding 4000 dollars and the income of corporations of all
amounts excepting mutual insurance compauies and ecclesiastical bodies. At least four-
fifths of the tax was payable by four States— New York, New Jersey, Pennsylvania, and
Massachusetts. " In a number of the States whose representatives voted for the tax it»
incidence did not aiFect more than a very few individuals. The constitutionality of this
proceeding, by the consent of the Attorney-General, who waived all questions of juris-
diction, was brought before the Supreme Court before the tax was payable. In their
first decision the Court held unanimously that so much of the tax as applied to the income
from municipal bonds was void, since those securities could not be taxed by the United
States ; and by a majority of four to two, that so much as applied to rents was also void,
as a tax upon real estate, and consequently a direct tax which must be apportioned.
They divided equally on the questions whether tlie invalidity of this part destroyed the
rest ; and whether the tax on the general income from personal property was also void a»
a direct tax. A re-argument was ordered, which Mr. Justice Jackson, whose illness had
prevented his previous presence, left his death-bed to attend. He voted to sustain so
much as did not apply to municipal bonds ; but Mr. Justice Shires, who on the first
decision had voted to sustain so much as did not apply to rents, changed his mind ; and
by a majority of five to four the whole income-tax was held to be void, as a direct tax
which had not been apportioned." (Pollock v. Farmers' Loan and Trust Co., 157 U.S.
429 and 158 U.S. 601. Foster's Comm. I. p. 421.)

Such a question as that raised in Pollock v. Farmers' Loan and Trust Co. could not
be raised under the Constitution of the Commonwealth, in which there is no rule for the
apportionment of direct taxes or of any taxes among the States. See, however, the rule*
against " Discriminations " and '* Preferences," supra.

51. (iii.) Bounties"^ on the production or export of goods,
but so that such bounties shall be uniform throughout the
Commonwealth :

Historical Note. — In the Commonwealth Bill of 1891, this provision was
embodied in sub-clause 2, "customs, excise and bounties," and in that form it was
adopted at the Adelaide and Sydney sessions in 1897. (Conv. Deb., Syd., 1897, pp.
1065-8.) At the Melbourne session, before the first report, it was placed in a sub-clause
by itself.

§ 165. " Bounties."

The trade and commerce sub-section would probably have been sufficient to confer
on the Federal Parliament power to grant bonuses, bounties, and subsidies on the pro-
duction or the export of goods ; that is to say, on the growth or manufacture of goods
to be consumed within the Commonwealth, as well as on the growth or manufacture of
goods to be exported from the Commonwealth. This sub- section has been inserted for

§ 165.] POWERS OF THE PARLIAMENT. 557

the purpose of placing the bounty -granting power of the Parliament beyond doubt, and
also for the purpose of associating with and grouping around the power several
restrictions and directions. It may facilitate the study of this power to present a
survey of the constitutional provisions relating to it.

First comes the requirement (sub-sec. 3) that such bounties shall be uniform
throughout the Commonwealth. If they are not uniform the law on which they are
founded is null and void. The rule as to uniformity means not merely that the bounty
must be general throughout the Commonwealth, but also that there must be a uniform
or equal bounty on each class of goods which is the object of the bounty. (Sturges v.
Crowninshield, 4 Wheat. 122.) The Supreme Court of the United States has interpreted
the word "uniform," in similar association, to mean the same amount upon the same
article wherever found. ^Head Money Cases, 1 12 U.S. 580 ; Burgess, Political So.
ii. 151.)

The next question to cousider is, at what stage in the history of the Commonwealth
does this bounty-regulating power come into operation ? Sec. 86 provides that on the
establishment of the Commonwealth the control of the payment of bounties shall pass to
the Executive Government of the Commonwealth. Does this mean the control of the
payment of bounties authorized by the Federal Parliament, or does it mean the control
of the payment of bounties authorized under grants or agreements lawfully made by
the governments of the States before 30th June, 1898 ?

This leads to the consideration of sec. 90. By the first paragraph of that section,
the power of the Parliament to grant bounties on the production or export of goods
becomes exclusive on the imposition of uniform duties of customs and excise. The pre-
paration and adoption of such uniform duties will necessarily occupy a considerable
time ; by sec. 88 they must be imposed within two years of the establishment of the
Commonwealth. By the second paragraph of sec. 90, it is enacted that, after the
imposition of uniform duties, the bounty laws of the States shall cease to have effect.
This is followed by a proviso — which requires careful examination — that certain grants
or agreements made by States for bounties shall be preserved.

At the Adelaide sitting of the Convention, when the section relating to the cessation
of State bounties, as drafted by the constitutional committee, was under discussion,
attention was drawn to the fact that no provision was made for the protection of exist-
ing bounty arrangements. The State bounty laws, and contracts made thereunder, were
to be absolutely swept away as soon as uniform duties were imposed. It was contended
that where a colony had, prior to federation, entered into arrangements with the pro-
moters of certain industries to grant bonuses and bounties for the assistance and develop-
ment of those industries, such arrangements ought to be protected and preserved, even
after the establishment of the Commonwealth ; otherwise the sudden withdrawal of
State aid from those who had invested capital, in the expectation of the continuance of
that aid for a certain time, would be an unjust breach of faith on the part of the govern-
ment, and would be ruinous to those who had entered upon productive enterprises on
the strength of a public agreement. In illustration of the argument, it was mentioned
that the government of South Australia had made contracts with stock-breeders in the
Northern Territory, to pay them bonuses on the export of oattle. Those contracts had
several years to run, and if federation were accomplished and uniform duties imposed
liefore the expiration of the term, the government of South Australia would, under the
clause as it then stood, be prevented from completing its contract. Victoria was under
similar obligations, which her representatives were anxious should remain in full force
and unimpaired by the Constitution.

An effort was made to show that the repeal of State laws offering bounties on the
production or export of goods would not ipso facto invalidate anj' agreement made under
such laws before their repeal. Legal authorities were cited, showing that where an
enactment would prejudicially affect vested rights, or the legal character of past Acts,

558 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-iv.

the presumption against a retrospective operation is strongest. Every statute which
takes away or impairs vested rights acquired under existing laws, or creates anew obli-
gation, or imposes a new duty, or attaches a new disability in respect of transactions or
considerations already past, must be presumed, out of respect to the legislature, to be
intended not to have a retrospective operation. Thus the provision of the Statute of
Frauds, that no action should be brought to charge any person on any agreement
made in consideration of marriage, unless the agreement were in writing, was held not
to apply to an agreement which had been made before the Act was passed. The Mortmain
Act, in the same way, was held not to apply to a devise made before it was enacted. Sa
it was held that the Act 8 and 9 Vic. c. 109, which made all wagers void, and enacted
that no action should be brought for a wager, applied only to wagers made after the
Act was passed, (Maxwell, Interpretation of Statutes, 3rd ed. 299.)

This assurance, however, did not satisfy the representatives of the colonies
interested. Eventually an addendum was made to the proposition, wliich, after various
modifications at subsequent stages, at last assumed the phraseology in which it is^
presented in clause 90 of the Constitution, viz., any grant of or agreement for any bounty
lawfully made by or under the authority of the Government of any State shall be taken
to be good if made before the thirtieth day of June, one thousand eight hundred and
ninety-eight, and not otlierwise.

Another branch of the bounty question is dealt with by sec. 91, in which a limited
measure of bounty-granting power is reserved to the States. In the course of the general
debate at Adelaide, it was said that there were a number of local industries, peculiar and
special to particular States, and with which the Commonwealtli Parliament would have
no concern. Thus the Victorian Parliament had been in the habit of granting pros-
pecting votes for tlie encouragement of gold mining. New South Wales might see the
advisability of granting a similar assistance for the production of iron. It was urged
aa extremely desirable that the greatest possible facility, consistent with equality and
freedom of inter-state trade, should be reserved to the States, in order to enable then»
to promote any policy for the development of their natural resources. It was first
suggested by Mr. Trenwith, that the right to vote grants in aid of gold and other metal-
mining should not be exclusively vested in the Federal Parliament, but that the States
should have a concurrent power, and that as regards other local industries, nob capable
of full specification, and in which the Commonwealth as a whole was not concerned,
bounties might be given by the States with tiie consent of the Federal Parliament.
This would secure the object aimed at without detracting from the supreme control and
supervision of the highest legislative authority. A section allowing the States to-
subsidize mining for gold, silver, or other metals, was readily agreed to. (Sec. 91.) It
was only after a prolonged debate in Melbourne, and in response to the earnest appeal
of the Premier of Victoria, supported by his colleagues, that an addition to the mining
section, enabling a State, with the consent of both Houses of the Federal Parliament, to^
grant aids to or bounties on the production or export of goods was made. (Sec. 91.)

For further discussion of State and Federal powers with regard to bounties, see notea
to sees. 86,90, and 91.

51. (iv.) Borrowing money^^ on the public credit of the
Commonwealth :

Historical Note. — The Constitution of the United States empowers Congress " to
borrow money on the credit of the United States." (Art. I. sec. vii. sub-s. 2.) The
British North America Act, sec. 91, sub-s. (4), gives the Dominion Parliament power as
to "The borrowing of money on the public credit," whilst sec. 92, sub-s. (3), gives each
Provincial Legislature power as to " The borrowing of money on the .sole credit of the
Province." In the Commonwealth Bill of 1891 the sub-clause appeared in its present
form. In Committee, the only debate was on the suggestion that there should be power

§ 166 ] POWERS OF THE PARLIAMENT. 559

to borrow in order to pay ofiF the debts of the States. (Con v. Deb. Syd. , 1891 , pp. 679-83. >
In the Convention of 1897-8 the sub-clanse was adopted and agreed to without debate.

§ 166. " Borrowing Money."

Under the power to borrow money on the credit of the United States, and to issue
circulating notes for the money borrowed, the authority of Congress to define the
quality and force of these notes as cunency is as broad as the like power over metallic
currency under the power to coin money and regulate the value thereof. Under the two
powers, taken together. Congress is authorized to establish a national currency, either
in coin or in paper, and to make that currency lawful money for all purposes as regards
the national government or individuals, and this whether in time of war or peace.
(Juilliard v. Greenman, 110 U.S. 421. Baker, Annot. Const 19.)

A tax imposed by a State or under its authority on stock issued for loans made to
the United States is unconstitutionaL (Weston v. City of Charleston, 2 Pet. 449. Id.
p. 17.)

The stock of the United States, constituting the whole or part of the capital stock
of a State Bank, is not subject to State taxation. A tax on Federal stock is regarded as
a tax upon the exercise of the borrowing powers conferred upon Congress. It is immaterial
that the tax is on the aggregate property of the taxpayer, and the stock is not taxed by
name. (Bank Tax Case, 2 Wall. 200.)

Securities of the United States are exempt from State taxation ; and this exemption
extends to the capital stock of a corporation if made up of such securities. (Provident
Institution v. Massachusetts, 6 Wall. 611. Id. p. 17.)

United States notes are exempt from taxation by State or municipal authority.
(Mitchell I'. County Commissioners, 91 U.S. 206. Id. p. 18.)

A tax by a State upon the bonds of the United States is a tax upon the borrowing
power of Congress, and is invalid. But the fact that a corporation has invested part of
its capital in United States bonds does not prevent the State from taxing the corporate
franchises or business of the corporation. (Home Insurance Co. v. New York, 134 U.S.
594. Id. p. 19.)

51. (v.) PostaP*", telegraphic, telephonic, and other like
services :

Historical Note — The corresponding power in the Constitution of the United
States is •' to establish post-offices and post-roads ; " in the British North America Act,
• Postal service." Earl Grey's Committee of the Privy Council in 1849 suggested
*■ The conveyance of letters " as a federal subject (p. 85, supra). Wentworth's Consti-
tutional Committee in 1853 specified "Postage between the said colonies;" and the
draft Bill annexed to Wentworth's Memorial in 1857 specified " Intercolonial telegraphs
and postage' (pp. 91-94, supra). In the Federal Council of Australasia Act, 1885,
posts and telegraphs, curiously enough, were not mentioned.

In the Commonwealth Bill of 1891, "Postal and telegraphic services" were
specified (sub-cl. 8). At the Adelaide session, 1897, the same words were adopted in
the first draft. In Committee, Mr. Holder moved to add the words " without the
boundaries of the Commonwealth," on the ground that inland posts and telegraphs were
matters of purely local concern. This was defeated by 30 votes to 5. On Mr. Wise's
motion, the words "telephonic and other like services " were added. (Conv. Deb.,
Adel., pp. 767-75.)

At the Sydney session, a suggestion by the Legislative Assembly of South Australia
(similar to a suggestion by the Legislative Assembly of Western Australia) to add the
words '* outside the limits of the Commonwealth" was negatived. (Conv. Deb., Syd.,
1897, pp. 1068-9.)

560 COMMENTARIES ON THE CONSTITUTION. [Sec. 51

§ 167. "Postal."

Postal, telegraphic and telephonic departments will not be transferred to the Federal
Government at the establishment of the Commonwealth, but on a subsequent date, fixed
and proclaimed by the Governor-General, acting on the advice of the Federal Adminis-
tration. When these important departments are taken over by the Commonwealth, all
the property of every kind of each State, used exclusively in connection with them, will
become vested in the Commonwealth. The Commonwealth will also be able to acquire
any property of each State used, but not exclusively used, in connection with those
departments. The Commonwealth will compensate each State for the value of
property passing to it under the Constitution, as well as for the value of property
partially used in connection with transferred departments which the Federal Govern-
ment may, in the exercise of its discretion, decide to acquire. The procedure for
determining the amount of compensation is detailed in sec. 85. In taking over these
valuable assets, the Commonwealth is bound to assume the obligations of each State in
connection therewith, current at the date of transfer. (Sec. 85 — iv.)

Under the power to establish post-offices and post-roads, the mail operations of the
United States are regulated. Postmasters are appointed and their duties prescribed ;
mail contracts are made and carriers of mails regulated ; provisions are made for the
junishment of depredations on the mail. These powers are incident to the main power.
(Sturtevants v. City of Alton, 3 McLean, 393. Baker, Annot. Const, p. 47.)

The powers conferred are not confined to the instrumentalities in use when the
Constitution was adopted. Congress, in its exercise, should keep pace with the progress
of the country and adapt the regulations to the development of time and circumstances.
The powers were conferred for the government of business for all time and under all
circumstances. To this end Congress may establish telegraph lines, and in this, is not
limited in its operation to such military and post-roads as are on the public domain.
(Pensacola Tel. Co. v. Western Union Tel. Co. 96 U.S. 1, id. p. 47.)

The postal power of the United States embraces the regulation of the entire postal
system of the country, and enables Congress to designate what sliall be carried in the
mail and what excluded. A law excluding circulars of lotteries, Ac, is a valid exercise
of the power. But when any matter is excluded from the mails, Congress cannot forbid
its transportation by other means, so as to interfere with the freedom of the press. (Ex
jmrte Jackson, 96 U.S. 727, id. p. 47.)

"We may also class the power of Congress over the postal service with, but not
under, the power to regulate commerce with foreign nations and among commonwealths.
I say with, but not under, because this power extends to postal communication witliin a
single commonwealth, as well as among the commonwealths and with foreign States,
and because the Congress has interpreted its power in this respect as authorizing it not
simply to regulate the postal business, but to authorize the administration to do the
postal business, and to do it exclusively ; i.e., Congress has claimed and exercised the
power of establishing agovermnental monopoly of the postal business overall governmental
postal routes, and, since Congress may declare every route a governmental postal route,
the monopoly is complete at the option of the Congress. Tlie Court has ratified the inter-
pretation which Congress has placed upon its power in this respect." (Burgess Political
Sc. II. p. 1.S9-40.)

" Again, Congress must not so exaggerate the conception of mail matter as to claim
the express business as a governmental monopoly. It cannot prohibit from carriage in
other ways than through the United States mail anything which was not regarded as
mail matter at the time of the formation of the constitution." (Id. p. 140.^

" Whether, under the power to establish post offices and post roads, the legislature
of the United States may make the telegraph a governmental monopoly cannot be re-
garded as entirely settled, although the Congressional Act of 1866, and the deci-sion of
the Supreme Court in the case of The Pensacola Telegraph Company v. The Western
Union Telegraph Company, seem to indicate that both the Congress and the Court
interpret the constitution as vesting this power in Congress." (Id. 140-1.)

-§ 168.]

POWERS OF THE PARLIAMENT. 561

51. (vi.) The naval and military defence^®^ of the Com-
monwealth and of the several States, and the control of the
forces to execute and maintain^^ the laws of the Common-
wealth :

Historical Note. — The war powers of the United States (Art. I. sec. viii. sub-ss.
11-16) are those of a sovereign State, and include the power to declare war. The
^jorresponding provision of the British North America Act is "Militia, Military and
Naval Service and Defence" (sec. 91, sub-s. 7).

" Defence" was specified as a federal subject in the Bill attached to Wentworth's
Memorial in 1857 (p. 94, -ntj/ra). By the Federal Council of Australasia Act, 1885, the
subject of " general defences " might be referred to the Federal Council. The oppor-
tunity for Sir Henry Parkes' action which led to the Sydney Convention of 1891 was
Major-General Edwards' report on the necessitj' for federal defence. In the Common-
wealth Bill of 1891 there were two sub-clauses dealing with the matter : — " (6) Tlie
military and naval defence of the Commonwealth and the several States, and the calling
out of the forces to execute and maintain the laws of the Commonwealth, or of any State
or part of the Commonwealth ; (7) Munitions of war." The latter sub-section was added
in Committee, at Mr. Fitzgerald's suggestion. (Conv. Deb., Syd , 1891, pp. 683-4.)

At the Adelaide session, 1897, the sub-clause was worded:— "The military and
naval defence of the Commonwealth and the several States, and the calling out of the
forces to execute and maintain the laws of the Commonwealth." A verbal transposition
was made at the Sydney session ; and at the Melbourne session, after the fourth report,
" control " was substituted for " calling out."

§ 168. "Naval and Military Defence."

In 1858 the military expenditure incurred by the Imperial Government in the various
colonies and dependencies of the Crown amounted to nearly £4,CK)0,(XK) sterling. Towards
that large sum the communities for whose defence and safet}' it was incurred contributed
only £380,000. In few of those colonies or dependencies was there any militia estab-
lished, or any local pro\ision made for defence. In 1859 a Departmental Committee
-consisting of Sir T. Elliott of the Colonial Office, Mr. Hamilton of the Treasury, and
Mr. Godley of the War Office, submitted a report to the Imperial Government on the
question of the defence of the colonies, in which the injurious consequences of the old
policy of encouraging the colonies to rely solely on the Mother country for protection
were pointed out. Not onh" did it impose an unfair burden on the British taxpayer, but
it also retarded the development of the spirit of self-reliance and self-defence in the
colonies, and discouraged any effort to share in the responsibility of maintaining intact
their free institutions and their national existence. The report led to an important
reform, which was inaugurated shortly afterward.

On 4th March, 1862, Mr. Arthur Mills proposed in the House of Commons the
following resolution, which was carried unanimously : —

" That this House (while fully recognising the claims of all portions of the British
Empire to Imperial aid in their protection against perils arising from the consequences
of Imperial policy) is of opinion that colonies exercising the rights of self-government
ought to undertake the main responsibility of providing for their own internal order and
securitj-, and ought to assist in their own external defence."

A fundamental change was brought about bj- the gradual withdrawal of the Imperial
troops, previously scattered throughout every part of the Empire, and by the self-
governing colonies undertaking the responsibility of their own military defence. (Todd's
Pari. Gov. in Col., 1st ed. p. 295.)

In 1873 the Under-Secretary of State for the Colonies was in a position to infomi
Parliament that the military expenditure in connection with the colonies was only such

562 COMMENTARIES ON THE CONSTITUTION. [Sec.51-vi.

as was necessary for Imperial purposes. The barracks, fortifications and landed property
used for defence purposes, and the arms and munitions of war in actual use in each
colony, were handed over to the local Government, subject only to the condition, that if
at any future time troops should be sent to the colony at its request, or in the further-
ance of colonial interests, suitable accommodation should be provided for them. (Id.
p. 298.)

On the application of the Governments of New South Wales, Victoria, South
Australia, and Queensland, the Imperial Government decided in 1876 to instruct Major-
General Sir W. F. D. Jervois and Lieutenant-Colonel Scratchley to inspect the existing
fortifications, ports, harbours, and coastal defences, of the various Australian colonies,
and to advise the local Governments as to the engineering and other means required to
place the naval and military defences of Australia in a state of efficiency. In accordance
with the recommendations of those distinguished officers, provision was made by the
Australian Legislatures for the purchase of war vessels, the erection of forts, and the
improvement of harbour defences. (See p. 115, supra.)

At the Colonial Conference held in London in 1887 the representatives of the colonies
expressed a desire that the Imperial Government should appoint a military officer of high
standing to advise the Australian Governments as to the best method of organizing the
local forces in order to secure their joint co-operation in time of need. Accordingly in
1889 Major-General Edwards, R.E., C.B., was sent to Australia to in.spect and report
upon the defences of the colonies. In his able and elaborate report he pointed out the
imperfections of the existing system of defence, which was based on purely local adminis-
tration with no provision for united action in time of emergency, and he submitted a
plan for a uniform system of military organization to be brought into operation through-
out Australia. He suggested tliat the troops of the various colonies might act in the
field as a united force under one command whenever required, so that they might be in
readiness to be removed to repel invasion at anj' given point. The following is a
summary of General Edwards' proposals : —

(1.) Federation of the forces :

(2.) An officer of the rank of Lieutenant-General to be appointed to advise and
inspect in time of peace and to command in time of war :

(3.) A uniform system of organization and armament, and a common defence
Act:

(4.) Amalgamation of the permanent forces into a " fortress corps " :

(5.) A federal military college for the education of the officers :

(6. ) The extension of the rifle clubs :

(7. ) A uniform gauge for the railways :

(8. ) A federal small-arm manufactory, gun wharf and ordnance store.

" In urging the necessity of a federal military college, the general pays a tribute to
the Canadian royal military college. He says : ' Nothing is more necessary for the
efficiency of an army than the proper education of its officers, but at present no means
exist in Australia to meet this important want. Canada was formerly in the same
difficulty before she was federated, and it was only overcome by the establishment of
the royal military college at Kingston. Having had personal experience of the officers
educated there, I can testify to the excellence of their instruction. In addition to the
primary object of the college, the course affords a thoroughly practical, scientific and
sound training in all branches essential to a high and general education. The tendency
of it has been to cause the students to feel a greater pride in their country, and to look
at it from the broad standpoint of Canadians, whose aspirations are not circumscribed by
the limits of a municipalitj'. A college such as this would be eminently adapted for the
education of the officers of the Australian forces.'" (Todd, Par. Gov. in Col. 2nd ed
pp. 399-401.)

The Australasian Naval Defence Act, 51 and 52 Vic. c. 32, a.ssented to 20th Dec.
1887, was passed to give legal effect to the terms of a provisional agreement between the
Imperial Government and the Governments of the Australasian colonies, subject to
parliamentary ratification. (See p. 1 16, supra. ) Under the terms of this compact, the

§ 168.]

POWERS OF THE PARLIAMENT.

563

Admiralty undertook to construct and equip a fleet of five fast cruisers, each of 2573
tons displacement and 7500 horse power, and two torpedo gunboats, on the most
approved modem build, each 750 tons and 4500 horse power, for the protection of the
floating trade in Australasian waters, and in order to secure the defence of certain ports
and coaling stations. Of these vessels, three cruisers and one gunboat were to be kept
continually in commission, the remainder to be held in reserve irrespective of the usual
strength of Her Majest\''s naval force employed at the Australian station. The Act
stipulated that these sea-going ships should be furnished by the Imperial Government,
the colonies paying 5 per cent, interest annually on the prime cost, such payment not to
exceed £35,000 a year ; the colonies in ad<lJtion bearing the actual charges of their
maintenance, including retired pay to otficers and pensions to men, provided that the
annual cost under this head should not exceed £91,000. The ships were to be under the
sole control and orders of the naval commander in-chief on the Australian station, "but to
be retained within the limits of that station, and only otherwise employed by consent of
the colonial governments. The agreement was to become binding between the govern-
ments as soon as the colonial legislatures passed special appropriations for the fulfilment
of its conditions. For the boundaries of the Australian station, as defined in the Act,
see p. 116, mipra.

The agreement was ratified in 1887 by similar Acts passed by the variotis Australian
legislatures. It was made for a period of ten years at least, and it could only be
terminated then or thereafter upon two years' notice. The ninth annual contribution of
£126,000 for cost and maintenance of coastal defence was allotted among the various
Australasian colonies, on the basis of population, as follows : —

The report of General Edwards, recommending a federation of the naval and
military forces, was one of the strongest arguments ever submitted in favour of the
political federation of the Australian colonies. Most of the leading statesmen of the day
were of opinion that there could be no successful federation for naval and military
purposes unless the forces were placed under one command ; that there could not be one
command .except under one government, and one common system of taxation by a
representative parliament. These views were expressed with unanswerable force and
admirable precision by Sir Henry Parkes in moving the preliminary resolutions on which
the Draft Bill of 1891 was founded. "I then come," said the venerable President of
the Convention, " to one to which I expect an almost unanimous agreement : That
the military and naval defences of Australia shall be entrusted to federal forces, under
one command. Whatever our views may be on other points, I think we shall all be
agreed upon this : that for the defence of Australasia to be economical, to be eflicient,
to be equal to the emergency that may arise at any time, it must be of a federal
character, and must be under one command. I am seeking to simplify my words as much
as possible. I do not mean that the land forces and the naval forces shall be under one
commander-in-chief ; but that they should be under one kindred command — that the
naval officer in command, equally with the military officer, shall be a federal officer, and

564 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-vi.

amenable to the national government of Australasia. Now these are the conditions
which appear to me to be essentially requisite that we should decide in one way or the
other — that should be strictly defined by this Convention before we can proceed to
construct a bill to confer a constitution." (Conv. Deb., Syd., 1891, p. 25.)

Under the Constitution the Federal Parliament, like the American Congress, has
power to raise and maintain an army and a navy ; it is charged to take over from the
States their naval and military departments, their forces, their fortifications and defence
works and buildings, their ships of war, their war materials and armaments (sees. 69
and 85) ; it may acquire from the States or from private persons landed and other
property necessary for naval and military purposes. (Sec. 51— xxxi.) In fact it has
full and exclusive authority for the construction of defence works and for the recruit-
ment, organization, and discipline of the whole of the naval and military forces of the
Commonwealth ; it can do everything in the development of its naval and military
system which can be accomplished by legislation, except that it may not assume the
functions of the commander-in-chief, which by sec. 68 are vested in the Governor-
General as the Queen's representative. (Burgess II. 153-5.)

The States are forbidden to raise or maintain any naval or military forces without
the consent of Parliament. (Sec. 114.) The American Courts have gone so far as to
express the opinion that the States cannot obstruct or embarrass the power of Congress,
in the creation of military forces, by prohibiting the people from keeping or bearing
arms. (Hresser v. Illinois, 116 U.S. 252.) This inhibition is derived from the power of
Congress to construct the whole military organization of the nation. (Burgess II. 151.)
The States of the Commonwealth are no doubt similarly inhibited. The military
jurisdiction of Congress is subject to one limitation, viz., that army appropriation shall
not, at any one time, provide for a longer period than two years. (Art. I.,
sec. 8, 88. 12.)

The Parliament of the Commonwealth is not so hampered in its appropriations.
But the plenitude of its naval and military power is, apparently, subject to limitation
in the purpose for which it must be used. It could not enter upon naval and military
enterprises solely with a view to foreign conquest and aggression ; its power is to be
used for the defence of the Commonwealth and of the several States, and for the preser-
vation of law and order within its limits. As to the exclusiveness of this power, see
notes to sec. 114.

The control of the general government over this subject is plenary and exclusive.
It determines how the armies shall be raised, whether by voluntary enlistment or forced
draft, the age at which the soldier shall be received, the period of .service, and the com-
pensation to be allowed It provides for the rules that shall govern the army, defines
military offences, and prescribes punishment ; and no State can interfere with the dis-
charge of these national duties by habeas corpus or other proceedings. (Tarble's Case, 13
Wall. 397. Baker, Annot. Const, p. 52.)

The Constitution of the United States empowers Congress to " raise and support
armies " ai d to " provide and maintain a navy." Independently of the express elau.se
in the Constitution, this must include the power to " make all laws which shall be
necessary and proper for carrying into effect the foregoing powers." (United States v.
Bainbrirlge, 1 Mason, 71. Id.)

Congress has power to provide for the trial and punishment of military and naval
offenders, in the manner practised by civilized nations. (Dynes v. Hoover, 20 How.
65. Id. p. 53.)

The power to maintain a navy authorizes the Federal government to buy or build
ships of war. to equip them for war, and to despatch them to any part of the globe.
(United States v. Rhodes, 1 Abb. [U.S.] 28. Id.)

A war ship of a friendly foreign nation, while within a port of the Union and
demeaning itself in a friendly manner, is not within the ordinary jurisdiction of the
federal courts. The Exchange v. McFaddon, 7 Cranch, 116. Id.)

§§ 169 170.] POWERS OF THE PARLIAMENT. 565

§ 169. " To Execute and Maintain the Laws."

As to the duty of the Federal Government to protect every State against invasion,
and, on the application of the Executive Grovernment of the State, against domestie
violence, see Notes to sec. 119 (§§ 466-7, infra). (See also Martin v. Mott, 12 Wheat.
19 ; Luther r. Borden, 7 How. 8. Baker. Annot. Const, p. 53.)

The power which may be conferred under these words is meant to be exercised
when some sudden emergency renders it necessary, in order to maintain the public
peace. (Luther v. Borden, 7 How. 8.)

An Act of Pennsylvania providing that the officers and men of the militia of that
State neglecting or refusing to serve when called into service by the President shall be
liable to penalties prescribed b}- Congress, and providing for trial of such delinquents
by State court-martial, &c., is not repugnant to the Constitution of the United States.
(Houston V. Moore, 5 Wheat. 1. Baker, Annot. Const, p. 53.)

51. (vii.) Lighthouses^™, lightships, beacons, and buoys :

Historical Note. — Earl Grey's Committee of the Privy Council in 1849 suggested
"The erection and maintenance of beacons and light- houses " (p. 85, supra); and
Wentworth's Constitutional Committee in 1853, and his Memorial in 1857, specified
" Beacons and light-houses on the coast." Sec. 91 of the British North America Act
specifies "Beacons, buoys, light-houses" (sub-s. 9.)

In the Commonwealth Bill of 1891 the sub-clause ran : — " Ocean beacons and
buoys, and ocean light-houses and light-ships." These words were adopted by the
Adelaide session, 1897. At the Sj'dney session, a suggestion by the House of Assembly
of Tasmania, to omit " ocean " whenever occurring, was supported by Mr. N. J. Brown,
on the ground that it would be impossible to define what was, and what was not, an
ocean light ; that very often what was from one point of view a river beacon or light
was, from another point of view, an ocean beacon or light. As against this it was con-
tended that it was desirable to preserve the line of demarcation generally recognized
between what should be Federal power and what should be State power ; reserving to
the Commonwealth control over external and coastal services of this kind, whilst matters
capable of internal regiilation, such as lights, beacons, and buoys situated in harbours
and rivers should remain under the control of the States. This reasoning for the time
prevailed, and the word " Ocean" was retained. (Conv. Deb., Syd., 1897, pp. 1067-71.)
At the Melbourne session, before the first report, the word " Ocean " was omitted at
the suggestion of the Drafting Committee, thus greatly enlarging the jurisdiction of the
Federal Parliament, in accordance with the suggestion of the Tasmanian Assemblj*.

§ 170. ''Lighthouses," &c.

These works and services will be taken over from the States on a date or dates to
be proclaimed by the Governor-Genei-al after the establishment of the Commonwealth
(sec. 69).

Federal legislation under this sub-section will deal with the construction, equip-
ment, conduct, and management of light-houses, light ships, light-sirens, beacons, buoys,
and signals, for shipping throughout the Commonwealth, and over its adjacent seas. It
will also provide for the imposition and collection of dues to be paid by the owTiers or
masters of ships which pass the lights, signals, &c., and which derive lienefits therefrom.

At the Australasian Maritime Conference, held at Hobart in 1894, at which all the
colonies except Western Australia and New Zealand were represented, it was recom-
mended " that the whole system of lighting the highway, coast, and harbour lights of
Australasia be borne pro rata on the basis of the population ; " and it was also resolved,
" That in pursuance of the foregoing resolution, and after having carefully considered

566 COMMENTARIES ON THE CONSTITUTION. [See. 51-viii.

the questions relating to the light-house system of Australia, and further having ascer-
tained that in many cases lights-are most needed in the colonies possessing the smallest
population, this Conference is of opinion that the future erection and maintenance of
light houses should be conducted under a Federal system, whereby the cost would be
proportionately borne by the colonies that may now or hereafter join such Federation
upon a population basis."

51. (viii.) Astronomical and meteorologicaP^ observa-
tions :

Historical Note — These words were first inserted at the Adelaide session, 1897.
In Committee Mr. Reid questioned the necessity of retaining them, but the sub-clause
was agreed to. (Conv. Deb., Adel., pp. 775-6.)

§ 171. " Astronomical, &c."

"It is very desirable that we should have uniformity throughout Australia with
regard to these things. I am not so much wedded to the astronomical, but, in regard to
the meteorological observations, it is most essential that there should be uniformity
throughout Australia. On a former occasion I pointed out that one of our best observers,
Mr. Wragge, was very anxious we should have these observations in Tasmania. There
was no obligation on the part of the Tasmanian Government to establish these observa-
tions on Mount Wellington, but there is a general consensus of opinion among the best
men that these observations would be invaluable to Australia. Why should the Govern-
ment of Tasmania be called upon to meet an expenditure of this kind when it is admitted
by the best men in Australia and elsewhere that these observations would be of more
value to Australia than they could be to Tasmania, which happens to be the position
from which they could be taken '! If there is anything Avhich ought to be the subject of
a Commonwealth law, it is these observations, which will undoubtedly prove of great
value to shipping and other interests of Australia." (Sir J. Abbott, Conv. Deb., Adel.,
1897, p 775-6.)

" With regard to the astronomical observations it is very important that they should
be under Federal management. Take the case of the United Kingdom at the present
time. There we have an observatory at Greenwich which I apprehend is the chief
northern observatory of the empire. There is an observatory in Dublin, and another in
Edinburgh, both admirably managed institutions, but we do not hear of them conflicting
with the observatory at Greenwich, which maintains the paramount position in the United
Kingdom. The same is the case with the Washington observatory of the United States.
So also we should have an observatory in the Commonwealth which should rank before
the other observatories. It commends itself to our intelligence that there should be a
federal observatory, to take precedence over other observatories. I think there are
obvious reasons that the meteorological observations should be placed under one general
•control, and I trust that the Convention will not object to the clause as it stands." ( Mr.
€. H. Grant. Id. p. 776.)

51. (ix.) Quarantined'^:

Historical Note. — " Quarantine and the establishment and maintenance of marine
hospitals" is specified in sec. 91 of the British North America Act (subs. 16).
*' Quarantine" was one of the subjects which might be referred to the Federal Council of
Australasia under the Act of 1885. It was included in the Conmionwealth Bill of 1891,
and in the Adelaide draft of 1897. At the Sydney session, Mr. R. E. O'Connor thought
the sub-clause should be restricted to infection from outside, and moved to substitute
" Public health in relation to infection in contagion from outside the Commonwealth."
This was negatived by 19 to 13 votes. (Conv. Deb. Syd., 1897, pp. 1071-3.)

1 172.] POWERS OF THE PARLIAMENT. 567

§ 172. " Quarantine."

Scope. — Quarantine was originally the term of forty days, during which a ship
arriving in port, and suspected of being intected with a malignant or contagious disease,
was required to remain isolated and was forbidden all intercourse with the shore. Hence
it came to mean restraint or inhibition of intercourse ; also the place where the infected
or prohibited vessels were stationed. With the expansion of sanitary science and legis-
lation, quarantine has acquired a much wider signification than that which it first
possessed. It is now comprehensive enough to cover any forced stoppage of travel, or
of transit, or of communication, as well as compulsion to remain at a distance, or in a
given place, without intercourse, on account of any malignant, contagious, or dangerous
disease on land as well as by sea. (Webster's Internat. Diet.)

QcARANTiNK IX THE UxiTED States. — The Constitution of the United States of
America does not expressly confer on Congress jurisdiction to deal with quarantine.
Laws relating to quarantine may, although not so intended, operate as a regulation of
trade and commerce. Congress, like the Federal Parliament, has the exclusive power
to regulate inter-state and foreign commerce. Hence it follows, that inasmuch as
quarantine regulation necessarily involves temporary interference with and restraint of
the movements of commerce, and of those engaged in it, the power of the States to deal
with quarantine, although not taken from them and handed over to Congress, is strictly
speaking very limited. In practice, however, the States pass quarantine regulations
until Congress shall have interposed by independent legislation over the subject, or shall
have forbidden State laws in relation thereto. So far Congress has not passed laws
inconsistent with State quarantine laws ; on the contrary it has adopted some of the
State laws bearing on the subject. (Morgan's Steamship Co. i". Louisiana, 118 US.
455.)

QtJARASTrNE Under the Commoxwealth. — The Federal Parliament has received a
clearer and fuller grant of power relating to quarantine than Congress. It is given to
Congress by implication ; it is conveyed to the Federal Parliament directly. Out of that
express grant amplifications and developments may flow which could not have been
evolved from an implication. The Federal Parliament may deal w ith quarantine without
reference to the interests of trade and commerce, but as an independent question hasnng
regard to the sanitary condition and welfare of the Commonwealth as a whole. It will
be able to provide for the isolation, segregation, remedial and preventive treatment of
animals and plants and their diseases wherever found within the Commonwealth. It
would probably be able, if deemed desirable, to grapple with such problems as the tick
plague or a phylloxera pest, in stamping out which the whole of Australia is interested.
Such a power would only be exercised in cases of universal interest and of far-reaching
importance, and for the purpose of reinforcing and not superseding the ordinary sanitary
laws, institutions and authorities in operation within the respective States.

Caxadiax C.\ses. — By the Canadian Constitution, sec. 91, sub-sec. 11, the Dominion
Parliament has exclusive jurisdiction over quarantine and the establishment and main-
tenance of marine hospitals. In Ringfret v. Pope, 12 Quebec L.R. p. 303, it was held
that the preservation of the public health within the Province was a matter of merely
local or private nature which, by sec. 92, sub-sec. 16, is exclusiveh' within the jurisdiction
of the provincial legislature. Cross, J., dissented from this decision, so far as it
concerned the establishment of a central board of health with a system of subordinate
boards. He said : — " Although the provincial legislature might make and enforce police
regulations directly, or bj- giving that power to be executed by the municipalities so as
to promote health within their several jurisdictions, or deal with the subject in a sense
that was purely local, the Dominion legislature could deal with it in a general sense, and
take appropriate measures to prevent or mitigate an epidemic, endemic or contagious
disease, with which the Dominion, or any part of it, was threatened." In 1869 a Bill
providing for vaccination was not proceeded with in the Dominion Parliament, as it was

568 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-x.

considered doubtful if it was within its jurisdiction. (Bourinot's Parliamentary Procedure
and Practice, 2nd ed. p. 674, citing Com. Deb. 1869, p. 64; Sen. Deb. 1879, p. 47 ;
Lefroy, p. 659.)

The Legislature of British Columbia passed an Act enabling the Corporation of
Vancouver to make by-laws for regulating, with a view to preventing the spread of infec-
tious disease, the entry and departure of ships at the port of Vancouver, and the landing
of passengers and cargoes from ships or from railroad cars. In the case of the Canadian
Pacific Navigation Co. v. The City of Vancouver, 2 Brit. Columb. 193, it was held that
this was not an infringement of the Dominion power to regulate trade and commerce.
But according to the report of Sir John Thompson, Minister of Justice of Canada, dated
28th Januarj^ 1889, respecting the Nova Scotia Acts of 1888, authorizing the Governor
in Coimcil to regulate "with a view of preventing the spread of infecjious disease, the
entry or departure of boats or vessels at the different ports or places in Nova Scotia,"
and the report of the same Minister, dated 21st March, 1891, on the Manitoba Act
respecting the diseases of animals, it would seem that, in the opinion of the federal
authorities of Canada, such legislation is an invasion of the Dominion power over
quarantine. "The British North America Act," saj^s Sir John Thompson, "gives
exclusive legislative power to the Parliament of Canada in respect of quarantine,
navigation and shipping. It would clearly not be competent for a provincial legislature
to make an enactment relating to the arrival of vessels, vehicles, passengers or cargoes
from places outside the province, but it may be that provincial control may be exercised
in relation to transport from one port of the Pi-ovince to another, subject, of course, to
any regulation on the subject of quarantine by the federal authority."

51. (x.) Fisheries^^^ in Australian waters beyond terri-
torial limits^^* :

Historical Note. — Sec. 91 of the British North America Act empowers the Parlia-
ment of Canada to make laws as to "sea coast and inland fisheries" (sub-s. 12).
"Fisheries in Australasian waters beyond territorial limits " was one of the independent
legislative powers of the Federal Council, under the Act of 1885 ; and the sub-clause in
its present form was inserted in the Commonwealth Bill of 1891. In the Adelaide draft
of 1897, it was adopted, with the addition of the words "and in rivers which flow
through or in two or more States." In Committee these added words were omitted.
(Conv. Deb., Adel., pp. 776-8.) At the Sydney session, Mr. Kingston suggested
" Australasian " for Australian, and also the insertion of some definition of Australasian
waters; but no amendment was moved. (Conv. Deb., Syd., 1897, pp. 1073-4.) At the
Melbourne session, after the first report, Mr. Barton moved an amendment to make the
sub clause read " Sea fisheries in Australian waters." Mr. Kingston and others, how-
ever, pointed out the necessity of express words, in order to give power outside terri-
torial limits, and the amendment, by general consent, was negatived. (Conv. Deb.,
Melb., pp. 1855-74.)

§ 173. "Fisheries."

A fishery, at common law, is a right incidental and annexed to the lordship or
ownership of the soil over which the waters, the habitat of the fish, flow. On the sea
coast, within three miles of the shore, and in the bays, arms, rivers, and creeks con-
nected with the sea and within the tidal pulsation, fisheries are presumed to belong to the
Crown, which can dispose of the right to private persons by license or lease. In non-
tidal waters it is presumed that the fisheries belong to the persons who own the riparian
lands over which ,the waters flow, or the land adjacent thereto. (Murphy v. Ryan,
1868, Ir. Rep. 2 C.L. 143.) At common law, therefore, the right of the public to Hsh

§§ 173-174.] POWERS OF THE PARLIAMENT. 569

under the supervision and protection of the Crown extends to all tidal waters within the
territorial limits. (Pearce v. Scotcher, 1882, 9 Q.B.D. 162.) Private persons, how-
ever, may, by either an express or an implied grant from the Crown, acquire the
exclusive right of fishery in the tidal waters. (Wilson r. Crossfield, 1885, 1 Times L.R.
601.)

Fishery laws may be defined as general laws for the regulation and conservation of
the fishing trade ; such as laws for the protection and preservation of fish ; forbidding
fish to be taken in an improper manner, as by objectionable appliances or noxious sub-
stances ; prohibiting unnecessary waste and destruction of fish, and the taking, buying,
or selling of fish in certain seasons ; proWding that fishermen, fishing boats, and ships
shall be licensed and registered ; and regulating the employment of labour in connection
with such boats and ships.

It has been held in Canada that in order to determine the nature of laws which
the Dominion Parliament may pass in relation to '* sea coast and inland fisheries " it
is necessary to look to the laws in relation to fisheries which the pro^^ncial legislatures
were before, and at the time of federation, in the habit of enacting. (The Queen v.
Robertson, 6 S.C.R. [Can.] pp. 52, 121.)

The right to regulate fisheries does not imply or convey a right to prejudice or invade
private property. Thus it has been decided in Canada that the British North America
Act, in assigning to the Parliament of Canada the right to legislate with respect to "sea
coast and inland fisheries," did not give authoritj' to deal with matters of property and
civil rights, such as the ownership of the beds of the rivers, or of the fisheries, or the
right of individuals therein. (The Queen v. Robertson, 6 S.C.R. [Can.] 52, followed and
confirmed by the same Court in Re Provincial Fisheries, 26 S.C.R. [Can.] 444.)

The Merchant Shipping Act, 1894, contains elaborate regulations relating to fishing
boats and fishermen employed on the waters surrounding the British Islands. Among
these may be mentioned sec. 399, in which special pro^nsions are made for trawlers of
25 tons and upwards. The skipper of every trawler of that tonnage going to sea from
a port in England or Ireland must make an agreement with his crew (not including sea-
fishing boys) under a penalty of £5. This agreement must be in a form approved by the
Board of Trade, dated at the time of its first signature, and signed first by the skipper ;
it must contain the nature and duration of the voyage or engagement, the number and
description of the crew, the time for beginning work, the capacity in which each seaman
serves, his remuneration, the scale of provisions, and regulations as to conduct on
board, fines, allowance of provisions, and punishments for misconduct approved by
the Board of Trade and adopted by the parties, who may add stipulations at their
will, if not contrary' to law, with regard to advance and allotment of wages. (Sec. 400.)
Similar agreements may be made by the owner or registered managing owner instead of
the skipper, in the same way as by the skipper.

§ 174 "Australian Waters Beyond Territorial Limits."

The sub-section, as originally drawn by the Constitutional Committee of the
Convention, contained words conferring jurisdiction over " fisheries in rivers which flow
through or in two or more States." The representatives of New South Wales objected
to the power in that form, on the ground that it would enable the Parliament to inter-
fere in matters of purely local concern, which could be more efficiently and economically
supervised by the State authorities. The words objected to were struck out, and the
States were accordingly allowed to retain the control of fisheries within their territorial
limits, whilst the Federal Parliament was assigned jurisdiction over fisheries in
Australian waters beyond the three-mile limit. This is a somewhat remarkable instance
of the intende<l extra-territorial operation of some of the laws of the Commonwealth.

Weight}- reasons were advanced in the Convention, both for and against the reten-
tion of the words " Australian waters beyond territorial limits." In opposition to
the words reference was made to the vagueness of the expression " Australian waters."

570 COMMENTARIES ON THE CONSTITUTION. [See. 51-x.

Mr. Kingston thought it important that some definition of the term "Australian
waters" should be inserted. " I do not know," he said, " if the hon. and learned
member, Mr. Barton, is satisfied in his own mind as to what meaning would be attached
to the term. I think that there was some provision in connection with the Federal
Council by which, under an Imperial order, these waters were defined ; and legislation
was adopted by the colony of Western Australia and Queensland in the exercise of
powers conferred on the Council in regard to those matters. The clause applies only to
matters beyond territorial limits, which increases the difficulty." (Con v. Deb., Syd.,
1897, p. 1073.)

In the absence of a definition, it was said, complicated questions might arise in
practice as to how far from the Australian coast " Australian waters " might be deemed
to extend, and whether at a given time a fishing boat was within those waters. More
important still was the innovating proposal to give the Federal Parliament power to
legislate respecting fisheries beyond its territorial limits Outside those limits the ocean
was the highway of all nations, and no country could claim to exercise exclusive juris-
diction over the high seas. It was not conceivalile that any law affecting fisheries out-
side the territorial limit would be legally operative. It was not sufficient to say that
the Imperial Parliament would give the Commonwealth power to legislate in respect of
matters occurring beyond those limits. The Imperial Parliament could not effectively
grant the Commonwealth a power which, according to the law of nations, it did not
possess. Suppose the Federal Parliament passed such a law, and the captain and crew
of a foreign ship violated it, in contempt and defiance of the Commonwealth, would not
the law in that case be made a laughing stock ? Then, again, the power as it stood in
the sub-section recognized two legislative authorities, with respect to fisheries, one
within, and the other beyond the three-mile limit. This might lead to a clashing of
State regulations with Federal regulations. The boundary line between State juris-
diction and Federal jurisdiction would be vague and not capable of easy and satisfactorj-
delimitation. Persons engaged in the fishing trade might very often be unable to say
whether they were liable to and bound to obey State laws or Federal laws. A vessel
engaged in trawling should not be under one set of laws when fishing close to the coast,
a,nd under another set when compelled to go further out to sea in order to find fish.
Rather than risk such doubt and possible conflict it might be advisable to omit the sub-
section altogether and allow the fishing trade to be governed by the laws relating to
trade and commerce, or by the laws relating to navigation and shipping, which were
within the competence of the Federal Parliament. Such laws would enable the Federal
authorities to issue fishing licenses and attach all necessary and proper conditions, and
such a course would meet all the requirements of the case. (Mr. E. -Barton, Conv. Deb.,
Melb., pp. 1857-8-9.)

The arguments in support of retaining the words admitted the difficulties pointed
out, but claimed that there were powerful considerations which more than outweighed
those difficulties In the first place this was by no means a new and untried grant of
power. By section 15 (c) of the Federal Council of Australasia Act (48 and 49 Vic. c. 60),
power was given to that body to legislate in respect of "fisheries beyond territorial
limits "—the identical words used in this sub-section ; the only condition to the
exercise of its jurisdiction being ( 1 ) that its laws should be enforced only in colonies
which had adopted the Act and which were represented in the Council, and (2) that
proposed laws relating to sec. 15 (c) should be reserved for the signification of Her
Majesty's pleasure. This had not remained a dormant power, but had been exercised.

In January, 1888, the Federal Council passed an Act to regulate pearl-shell and
beche-de-mer fisheries in Australasian waters, adjacent to the colony of Queensland. Tlie
preamble recited :

" Whereas, by certain Acts of the Parliament of the colony of Queensland, provision
has been made for regulating the pearl-shell and beche-de-mer fisheries in the territorial
waters of that colony ; and whereas, by reason of the geographical position of many of

^174.] POWERS OF THE PARLIAMENT. 571

the islands forming portion of that colony, vessels employed in such fisheries are, in the
prosecution of their business, sometimes beyond the territorial jurisfliction of Queensland ;
And whereas it is expedient that the provisions of the said Acts should extend and apply
to such vessels during all the time the\- are so employed, and that for that purpose the
provisions of the said Act, so far as they are applicable to extra-territorial waters, should
be extended to such wateis bj* an Act of the Federal Council of Australasia."

The Act contained proWsions to regulate the pearl-shell and beche-de-mer fisheries
in Australasian waters adjacent to the colony of Queensland. Such waters were defined
as being within the following limits : —

" All waters within a line drawn from Sandy Cape northwards to the south-eastern
limit of the Great Barrier Reef ; thence following the line of the Great Barrier Reef to
their north-eastern extremity near the latitude of 9^° south : thence in a north-westerly
direction embracing East Anchor and Bramble Cay ; thence from Bramble Cay in a line
west by south (south 79° west true) embracing Warrior Reef, Saibai and Tuan Island ;
thence diverging in a north-westerly direction so as to embrace the group known as the
Talbot islands ; thence to and embracing the Deliverance island and on in a west by
southern direction (true) to the meridian of 138° of east longitude ; and thence bj' that
meridian southerly to the shore of Queensland."

This Act was reserved for the Royal assent, which was proclaimed on 19th July,
1888. In February, 1889, the Federal Council passed an Act to regulate the pearl-shell
-and beche-de-mer fisheries in Australasian waters adjacent to the colony of Western
Australia. It contained provisions substantially similar to those of the Queensland Act.
The extra-territorial waters, w ithin which it was declared to be in force, were defined in
the schedule as follows :

" A parallelogram of which the north-western comer is in longitude 1 12° 15'^ east and
latitude 13° 30' south ; of which the north-eastern corner is in longitude 129° east and
latitude 30° .30' ; and of which the south-west corner is in longitude 112° 52' east and
latitude 3.5° 8' south ; and of which the south-eastern comer is longitude 129° east and
latitude 35° 8' south."

Both the Queensland and West Australian Acts are remarkable for the stringency of
their provisions relating to the employment of coloured labour, showing that " laws with
respect to fisheries " are capable of comprehending regulations controlling the employ-
ment of labour used in connection with fisheries. These Acts are still in foi-ce, their
operation being preserved by clause 7 of the Commonwealth Constitution Act.
Thus, it was pointed out, extra-territorial laws relating to fisheries had been ali-eady
sanctioned by the Imperial Government, and enforced by the Governments of the two
-colonies over a wide expanse of ocean, the boundaries of which were defined within
parallels of latitude and degrees of longitude. The pearl-shell and beche-de-mer trade
had been regulated ; the fisheries had been protected ; fees had been collected ; labour
had been supervised, and everything expected and desii^ed had been obtained. Here,
therefore, they had au illustration of the practicability of the grant of power contem-
plated. Having received such a grant in the Federal Council Act, it would not be wise
for Australia to surrender it by omitting a similar enabling provision from the Constitu-
tion of the Commonwealth. The power should appear on the face of the Constitution ;
they ought not to trust any implication hidden away in other clauses.

The practical arguments were strengthened by brojider and more patriotic considera-
tions. Such spheres of influence and control as had been already granted by the
Imperial Parliament to the Federal Council should be reserved for and transferred to
the Commonwealth. The people of such a continent as Australia, unique in its isolation
and configuration, should have liie right of control over waters outside the ordinary
territorial limits. We should begin our career as a Commonwealth by mapping out a
sphere of influence, and of commercial trading operations, all rouud the contirient, and
for some considerable distance from the coast. Within that sphere the Commonwealth
would represent and protect, not merely Australian interests, but Imperial interests. We
were taking over general powers from the States and from the Federal Council, and those
powers should be accepted undiminished, and maintained unimpaired, without abandon-

572 COMMENTARIES ON THE CONSTITUTION. [Sec.51-xi.

ing one jot or yielding one tittle of what had been acquired by the labours and triumphs
of the pioneers of Australian progress. (See speeches of Mr. C. C. Kingston, Sir John
Forrest, Mr. A. Deakin, and Mr. R. E. O'Connor. Conv. Deb., Melb., pp. 1861-3 and

1872.)

51. (xi.) Census^^^ and statistics :

Historical Note. — Sec. 91 of the British North America Act specifies " The
census and statistics." (Subs. 6.) The sub-clause " Census and statistics " was in the
Commonwealth Bill of 1891, and was adopted by the Convention of 1897-8 without
debate.

§ 175. "Census."

A census is the periodical numbering of the people of a country. Since the begin-
ning of the nineteenth century a census has been taken of the inhabitants of Great
Britain and Ireland every ten years, and the practice now extends throughout the
English speaking portions of the Queen's dominions. The object of the census is to
supply statistical information respecting number and conditions of the population, and
respecting the resources and developments of the country. As the census is taken
between the same hours of the same day of the same year, the necessity for uniform
legislation in contiguous countries is apparent. For the purpose of a census the whole
country is divided into districts, called enumerators' divisions, over which schedules
are distributed requiring particulars as to name, sex, age, profession or occupation,
marriage, relation to the head of the family, birthplace, and whether deaf, or dumb, or
blind, or imbecile, or lunatic. When the schedules so filled up are collected, the details
are verified and the results sent to the Registrar-General, who prepares a final abstract
thereof, which is submitted to Parliament.

The Parliament of Canada has exclusive jurisdiction of census and statistics. The
legislature of British Columbia passed an Act respecting the registration of births, deaths,
and marriages in that Province. On 2nd January, 1879, the Minister of Justice of the
Dominion called attention to the fact that the Act might be questioned as being
connected with statistics.

The census and statistical departments of the States will be taken over by the
Federal Government, as soon as enabling legislation is passed by the Federal Parliament.

51. (xii.) Currency '^^, coinage^^^, and legal tender^^^ :

Historical Note. — The Constitution of the United States empowers Congress " to
coin money, regulate the value thereof, and of foreign coin ;" and " to provide for the
punishment of counterfeiting the securities and current coin of the United States."
(Art. I. sec. viii. sub-sees. 5-6.) Sec. 91 of the British North America Act specifies
" currency and coinage " and " legal tender " (sub-sees. 14-20).

" Coinage " was specified as a federal subject in the Bill attached to VVentworth's
Memorial in 1857. "Currency, coinage, and legal tender " were specified in the Com-
monwealth Bill of 1891, and the sub -clause was adopted by the Convention of 1897-8
without debate.

§ 176. « Currency."

Currency in this connection means the acceptance, reception, passing or circulation
from hand to hand, from person to person, of metallic money, or of government or bank
notes as substitute for metallic money.

§§ 176-177.] POWERS OF THE PARLIAMENT. 573

The only gold coin now carrent in England is that coined during the present reign at
the London Mint, or the Australian branch mints. Pre-Victorian gold was decried by
proclamation in 1890. The designs current are those of 1838, 1870, 1887, and 189'<. The
Pre-Victorian gold has been called in in several colonies ; in Australasia and in New
Zealand in 189<) : in the Cape and Fiji in 1893. All silver coin coined since 181B is still
current and legal tender. The designs now legally current are those of 1817 and 1893.
Besides this general currency, in 1849 florins were made current coin. The design waa
altered in 1852, and double florins were made current under the proclamation <.f 1S87.
Until 1861 copper coins of the face value of Id.. J^d., and Jd. were coined as part of the
currency. They were then superseded by bronze monej' of the same denominations, and
the copper coinage was decried as to the United Kingdom in 1869, and as to all colonies
in which they were current in 1876. The designs adopted in 1861 were superseded by a
new design in 1895. (Encyc. of Laws of England, iii. p. 75.}

The Fe<leral Legislature has power, b\- suitable legislation, to restrain the circula-
tion, as money, of anv notes not issued by its own authority. (Veazie Bank r. F'enno,
8 Wall. 5.33. " Baker Annot. Const, p. 46.)

The Federal Legislature has power to provide by law for the punishment of the
offence of counterfeiting notes of foreign banks, or for having in po.ssession a plate from
which such counterfeit notes may be printed. (United States i. Arjona, 120 U.S. 479.
Id.)

This clause does not prevent a State from passing laws to punish the offence of cir-
culating counterfeit coin of the Union. Counterfeiting and circulating counterfeit coin
are offences essentially different in their character. The former is an offence against the
government ; the latter is a private wrong. (Fox r. Ohio, 5 How. 410. Id. p. 47.)

§ 177. "Coinage."

Coinage is the act or process of converting metal into money for circulation. The
coining and legitimation of money is one of the exclusive prerogatives of the Crown, but
from the earliest times it has been regulated by Act of Parliament.

Sterling money (gold and silver money) of a given weight and fineness, seems to have
been first established in l;J5l by 25 E<lw. III., st. 5, c. 13, but for a long time after that
date the Crown exercised, or as Blackstone says (1 Com. 278). usurped, as part of its
prerogative, the right to debase the coin. It was not until the time of Charles II. that
the currency was put on a comparatively sound footing. The standard and value of
English coin was extended to Scotland in 1706. Prior to 1870 the coinage and
management of the mint were regulated by a series of enactments, wholly or partly
repealed by and specified in the Coinage Act, 1870, 33 and 34 Vic. c. 10, on which the
regulation of coin of the realm and the colonies now mainly depends. That Act fixes
the standard of coins, prohibits the issue, except from the mint, of any piece of metal as
token or coin, under a penalty of £20, recovered summarily ; directs all contracts to be
made in currency ; regulates the purchase and coining of gold bullion ; and directs mint
profits to be paid into the exchequer. The exercise of the prerogative of coinage is
defined and controlled, but the powers are left very wide. The purity of the coinage
and the conformity to standarfl is ascertained annually by the trial of the pyx, which is
held under an Orcler in Council of 1871. At this trial a jury of six competent freemen
of the (Goldsmiths' Company examine coins of each minting, set apart for testing by the
standard trial plates and standard weights, which are kept in the custody of the Board
of Trade, and produced on notice for the occasion. The Chancellor of the Exchequer is
master of the mint, which is managed and regulated by the Treasury, subject to the Act
of 1870. (Encyc. of the Laws of England, iii. p. 74.)

The language of the American Constitution, by its proper signification, is limited to
the facts or to the faculty in Congress of coining and stamping the standard of value
upon what the government creates or shall adopt, and of puni.shing the offence of
producing a false representation of what may have been so created or adopted. The
imposture of passing a false coin creates, produces or alters nothing ; it is an offence
punishable bj- State law, since it leaves the legal coin as it was — affects its intrinsic
value in no wise whatever. (Fox v. Ohio, 5 How. 410-413 ; compare with United States
V. Marigold, 9 How. 560. Baker, Annot. Const, p. 47.)

Under this power, as well as under the power to regiUate commerce, Congress has
authority to enact laws providing for the punishment of persons who bring into the
United States, with intent to pass the same, any false or counterfeit coin, and also to

574 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xi.

punish persons for passing, altering, publishing or selling any such false or counterfeit
coin. (United States v. Marigold, 9 How. 560, id.)

The Mint opened in Sj'dney on 14th May, 1855, and that opened in Melbourne on
12th June, 1872, are Imperial Institutions, being branches of the Royal Mint. They
were established, and are now administered, by the Imperial Government at the request
of the Colonial Governments, which guarantee it against loss. The Queen's procla-
mation, pursuant to which these branches were opened, declared that the coin issued
therefrom was to be a legal tender for payment within the United Kingdom. The Par-
liament of New South Wales and the Parliament of Victoria have made permanent
provision, by special appropriations, for defraying the salaries, allowances, expenses,
and contingencies connected with the branch mints in their respective colonies. The
Victorian special appropriation is £20,1)00 per year ; that of New South Wales is
£15,000 per year. All fees, dues, and charges collected at the branch mints are
accounted for and handed over by the deputy masters to the Treasurers of their
respective colonies and paid into the consolidated revenue.

The West Australian Government has obtained the sanction of the Imperial Govern-
ment for the establishment of a branch mint in Perth, of which the foundation stone was
laid by Sir John Forrest on 23rd September, 1896. The building was completed and
handed over to the Mint authorities in October, 1898, and the necessary machinery has
since been erected. The expenditure involved up to the present has been about £30,000.
The Parliament of Western Australia has appropriated the sum of £20,000 per year
towards the maintenance of the Mint. On the authority of the Master of the Imperial
Mint, it is stated that the new Mint will probably relieve the Melbourne Mint of a third
of the deposits presented there. This will affect materially the profits of the Melbourne
Mint, which have for some years past been of a most satisfactor3' character. The Perth
Mint was opened for the reception of bullion on the 20th June, 1899.

The following statement of the capital value of the Sj'dney and Melbourne Mint
properties, the annual interest payable thereon, the ordinary annual expenditure, the
annual receipts, and the net cost per annum, has been compiled from returns presented
to the Convention. (Votes and proceedings of Melbourne Session, p. 232 ; Victorian
Federation Papers, 296. )

Sydney Mint.

Capital. — Estimated present value land and building
(rough approximation) ...

Maintenance. — Annual interest on outlay
Annual subsidy...

Total

Revenue, 1895-6, Fees, dues, charges, &c.
Net annual expenditure

Melbourne Mint.

£70,000

£.^,000
15,000

£18,000

£15,119

£2,881

Capital. — Estimated present value of land and building

(rough approximation) ... ... ... ... £70,000

Maintenance. — Annual interest on outlay £3,395

Annual subsidy 20,000

Total £23,395

Revenue, 1895-6, Fees, dues, charges, &c £21,194

Net annual expenditure ... ... ... ... £2,201

§ 178.]

POWERS OF THE PARLIAMENT. 575

§ 178. "Legal Tender."

Definition. — Legal tender is the act of tending, in the perfoi-mance of a contract,
or in satisfaction of a claim, that which the law prescribes or permits, and at such time
and place as the law prescribes or permits. ( Webster's Internat Diet ) In the United
Kingdom all coin current under proclamation, whether British, foreign, or colonial, is
legal tender. British gold coin is legal tender for any amount, unless defaced or
deficient in weight ; British silver up to forty shillings, and British bronze up to a
shilling (Coinage Act, 1870 [33 and ."U Vic. c. 10] s. 4.) Bank of England notes are
legal tender in England for all suras above £5, except by the Bank itself and its
branches. (Bank of England Act. 1833 [3 and 4 Wm. IV. c. 98, s. 6].) The notes are
treated as cash and not as securities for money, and they pass by mere delivery. (Miller
r. Race [1758] 1 Burr. 452.) The notes of a county bank are good tender, if not objected
to at the time of tender. (Polglass v. Oliver [1831] 2 Crompt. and Jarv. 15.) In Austral-
asia and New Zealand, by au Order in Council of 1896, it is provided that the rules as
to the amount for which British coin is legal tender are the same as in the United
Kingdom. (Imperial Statutory Rules and Orders, 1896.)

Coinage and Legal Tender.— By section 114 the States are forbidden to coin any
money or to make anj'thing but gold and silver coin a legal tender in payment of debts.
The prohibition is similar to Art. I. sec. 10, subs. 1 of the United States Constitution.
Hence it appears that under both Constitutions the creation and regulation of the
monetary system is a power conferred on the Federal Parliament. It is a general power ;
the Parliament is not limited in the choice of metals to which it will give the quality of
money. It may choose some other metal than gold and silver, and impress upon it a
legal tender quality. But if a State endeavoured to compel a person to accept anything
but gold or silver as a legal tender, the person aggrieved could appeal to the Courts of
the Commonwealth for relief. (Burgess, Political Sci. II. p. 143. )

Legal Tender in the United States. — The Congress of the United States is
expressly empowered to create and regulate the value of metal money. It has, however,
been decided by the Supreme Court that, although the power to legislate concerning
legal tender and paper money is not expressly conferred upon Congress, yet it has, by
necessary intendment, such a power, and it can make anything a legal tender in payment
of debt. (Juilliard v. Greenman, 110 U.S. 421.) The legal tender cases are very
instructive, as illustrating the expansive and elastic capacity of a WTitten constitution and
the possibilities of its inherent and necessary powers. This subject will be referred to
more fully in our note on " Paper Money," infra. At the present stage abstracts of the
ruling cases are given.

In the Constitution of the United States there is no express grant of power to
Congress to declare what shall be a legal tender, but this power has been uniformly
exercised and unquestioned. This universal recognition is tantamount to a direct
constitutional declaration, and the power can now be considered settled. (Martin v.
Hunter's Lessee, 1 Wheat. 304 ; Cohens v. Virginia, 6 Wheat. 421 ; Briscoe i'. Bank of
Kentucky, 11 Pet. 257 ; Anderson i' Dunn, 6 Wheat. 204. Baker, Annot. Const, p. 46.)

A Federal law making United States treasury notes legal tender is, when applied
to contracts in existence prior thereto, unconstitutional. (Willard r. Tayloe. 8 Wall.
557; Hepburn v. (iriswold, H Wall. 603; Broderick v. Magraw, 8 Wall. 639.) The
decisions in the above cases are overruled, and the acts of Congress making United
States treasury notes legal tender are held to be valid when applied to antecedent, as
well as to subsequent contracts. (Legal Tender Cases [1871] 12 Wall. 457 ; Dooley v.
Smith, 13 Wall. 6<J4 ; Norwich Railroatl v. Johnson, 15 Wall. 195 ; Juilliard r. Greenman,
[1884] 110 U.S. 421. Baker, Annot. Const, p. 46.)

Imperial Control. — Australian governors are at present required by their instruc-
tions not to assent to any Bill affecting the currency of the colony, unless such bill con-
tains a clause suspending its operation until the signification of the Queen's pleasure
thereon, or unless there is urgent necessity requiring it to be brought into immediate
operation. In either of these cases he is authorized to assent to the bill, and remit it

576 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xiiL

to the Queen at the earliest opportunity (p. 399, supra). This paragraph was omitted
from the Draft instructions under the Sign Manual and Signet to the Governor-General
of Canada, dated 5th October, 1878, and in all probability it will not be found in the
instructions to the Governor-General of the Commonwealth.

In 1851 a Canadian Act in relation to coinage was disallowed by the Queen in
Council, on the grounds (1) that the Act proposed to confer upon the Governor-General
the right of coining — a prerogative reserved by constitutional law to the sovereign ; (2)
that it purported to alter the current rates of certain foreign coins — a provision which,
being enacted without the previous assent of Her Majesty in Council, was an interference
with Imperial control over the value of currency money in circulation throughout the
realm. By the British North America Act of 1867, the Imperial Parliament has specially
empowered the Parliament of Canada to exercise " exclusive legislative authority " in
relation to " currencj' and coinage." The Acts passed in Canada upon the subject of
the currency in 1868 and in 1871 expressly conserve the prerogative of the Crown in the
matter of coinage, and authorize Her Majesty to fix by proclamation from time to time
the rates at which coins in circulation in Canada, or struck ofif by order of Her Majesty
for use in Canada, shall pass current. (Todd's Pari. Gov. in Col. 2nd ed. p. 176.)

"In 1866 a ministerial crisis occurred in Queensland. Owing to serious financial
embarrassments in that colony, ministers had tendered to the governor (Sir G. F. Bowen)
their advice that, in order to sustain the public credit, tiiere should be an immediate
issue of inconvertible paper currency, in the shape of legal tender notes, to an amount
not exceeding £200,000. The governor demurred to this proposal, inasmuch as he was
expressly forbidden, by the royal instructions — ' which are a part of the constitutional
law of the colony ' — to assent to any bill of this nature, unless upon urgent necessity, as
aforesaid. He distinctly declared that in no event would he give the royal assent to any
such bill. He suggested, however, another mode of meeting the financial difficulty—
viz., by obtaining legislative sanction to the issue of treasury bills, coupled with the
imposition of additional taxation ; a course which had proved successful, under similar
circumstances, in other colonies, and in the mother country." (Todd's Pari. Gov. in
Col. 2nded. p. 185.)

51. (xiii.) Banking^^^ other than State bankinor^^"; also
State banking extending beyond the limits of the State con-
cerned^^\ the incorporation of banks^^'^ and the issue of paper
money^^^ :

Historical Note. — Sec. 91 of the British North America Act specifies " Banking,
incorporation of banks, and the issue of paper money " (sub-s. 20). These words were
adopted in the Commonwealth Bill of 1891. In committee, the question of State savings
banks was raised, but no amendment was moved. (Conv. Deb., Syd., 1891, pp. 684-5.)
At the Adelaide session, 1897, the same words were used. The question of State banks
was again mentioned, but no amendment was moved. (Conv. Deb., Adel., pp. 778-9.)
At the Sydney session, a suggestion by the Legislative Assembly of New South Wales
and the Legislative Council of Tasmania, to insert after "banking" the words
" excluding State banking not extending beyond the limits of the State ccmcerned," was
agreed to (Conv. Deb., Syd., 1897, pp. 1074-5), and the sub-section was verbally
amended.

§ 179. " Banking."

Banking is the business of a bank or banker. A bank is an institution formed for
the deposit, custody, investment, loan, exchange or issue of money, or for facilitating
the transmission of money by drafts or bills of exchange ; it is an establishment generally
incorporated for the purpose of performing one or more of those functions. (Webster's
Internat. Diet. ) This definition covers every possible phase or combination of banking,
viz., the deposit, custody, investment, loan, exchange, issue and transmission of money.

§^^ n9-l80.] POWERS OF THE PARLIAMENT. 577

It is wide enough to embrace every person, partnership or corporate body, under what-
ever name, carrying on buainess in money. Legislation relating to banking would,
therefore, include laws regulating tlie inception, organization and conduct of such a
business ; the terms, conditions and securities for good faith under which it could be
carried on ; the powers, rights and pri\'ileges to be exercised and enjoyed b\- bankers ;
the obligations and responsibilities of bankers.

This sub-section presents another suitable opportunity for drawing attention to a
subject elsewhere referred to (see " Legal Tender," § 178, supra), viz., the vast area of
implied powers which may exist within the four corners of a written Constitution such
as this. In the Constitution of the United States no power is in express terms given to
Congress to incorporate banks. Yet the genius of Alexander Hamilton discerned that
such a power might be deduced by inference or implication, from a clause in the
Constitution authorizing Congress to make all laws " necessary and proper for carrying
into execution the foregoing powers."' (Art. i. sec. viii. sub-s. 18, U.S. Constitution, to
which sec. 51 — xxx\ii. of this Constitution corresponds.) The power to charter a bank to
facilitate the financial measures of the Federal Government was (argued Hamilton)
subsidiary and incidental to the power to tax and to borrow. " Everj' power vested in
a government is, in its nature, sovereign, and includes by force of the term a right to
employ all the means requisite and fairly applicable to the attainment of the ends of
such power, and which are not precluded by restrictions and exceptions specified in the
Constitution." (Hamilton's Works, Lodge's ed. vol. iii. p. 181.) Accordingly he urged
upon Congress the importance of chartering a National Bank of the United States, as an
aid and in-strument of the Federal Government in its financial operations. The Bill
passed Congress in 1791, and thus the first bank of the United States was established.
(Von Hoist, p. 126.)

The validity of the Act to create a national bank was tested in the Supreme Court
of the United States in the great case of McCulIoch v. Maryland, 4 Wheat. 316. By a
liberal interpretation of the Constitution, the Court, under the presidencj- of Chief Justice
Marshall, held that Congress had the power to incorporate the subscribers of the United
States Bank, and that its notes and branches were exempt from State taxation.

" In 1879, ministers submitted a bill to the Imperial Parliament to deal with certain
colonial banks which were in operation under royal charters. These charters had been
granted before it had become customary to establish joint stock banks under a general
law ; and the banks were subject to the supervision and control of the Treasury and of
other Imperial departments, in respect to divers matters. By this bill it was propose<l
to do away with this imperial responsibility, and to subject all thanks holding royal
charters to the laws of the particular colonies wherein they were situated. This would
have the further effect of preventing any unfair atl vantages on such corporations in com-
parison with other banks established under colonial laws. The bill was dropped in 1879,
but reintroduced in 1880, and referred to a select committee, M'hich reportetl evidence
taken thereon ; but owing to the then pending dissolution of Parliament it was not
pressed in that session. Nevertheless, the general principle of the measure was approved
by the house ; and the opinion of the Treasury was expressed that, in a self-governing
colony, the action of the local legislature would override a royal charter, within the
limits of the jurisdiction of that legislature." (Todd's ParL Gov. in Col. 2nded. p. 220.)

^ 180. " Other than State Banking."

These words exclude from the jurisdiction of the Federal Parliament all laws
relating to State banking. In the Sydney Convention (Debates, p. 1075) attention was
called by Mr. GljTin to the vagueness of the phrase " State banking." It was said that
there are no real " State Banks " in any country in the world. There are great financial
organizations such as the Bank of England, the Bank of France, the German Bank, and
the Bank of the United States of America, over which the Government exercises certain
control : which have certain exclusive privileges, including the conduct of government
business, but which are not strictly speaking State Banks. A State Bank, properh* so
called, is an institution which is solely managed by the Government and the capital of
37

578 COMMENTARIES ON THE CONSTITUTION. Sec.61-xiii.

which has been solely provided by the Government. The nearest known approach to a
State Bank, within the above definition, is the i^ost Office Savings Bank, which is purely
a State Institution. Such banks, and similar ones, which might be founded by th©
States, would under the above words be excepted from Federal control.

ExcKPTiONS TO Grants of Power.— The words, " other than State banking," are
equivalent to " except State banking ; " they are words marking an exception to the
general grant of power to legislate concerning banking. The Supreme Court of the
United States, in construing the Constitution as to grants of powers to the United
States, and the restrictions upon the States, has ever held that an exception of any
particular case presupposes that those which are not excepted are embraced within the
grant of power, and have laid it down as a general rule that, where no exception is
made in terms, none will be made by mere implication or construction. (Rhode Island v.
Massachusetts, 12 Pet. 657.) It is a rule of construction that the exception from a power-
marks its extent. (Gibbons v. Ogden, 9 Wheat. 191.) The fact that some powers are
specified has been therefore held to import that those not specified were withheld,
according to the old maxim, expressio unius exdusio alterhis, which Lord Bacon concisely
explains by saying, "as exception strengthens the force of a law in cases not excepted,
so enumeration weakens it in cases not enumerated."

§ 181. '' State Banking Extending Beyond the Limits of
the State Concerned."

State Banking. — Should a State establish a State Bank which extends its business
operations beyond the limits of the State, such extra-state operations would be subject
to Federal laws relating to banking.

§ 182. " Incorporation of Banks."

By virtue of this power the Federal Parliament could establish banks by special
Acts, a process known as Private Bills Legislation, or it could pass a general law dealing
with the banking business, and authorizing the incorporation and registration of banking
companies, subject to compliance with certain formalities and conditions. Compliance
with those formalities and conditions would result in the creation of a banking corpora-
tion, as efiective in its constitution as a corporation formed by a special legislative fiat.
When a corporate body is established by a special Act, that Act is called its charter or
deed of settlement ; when it is established under a law of general application, its
memorandum of association, lodged with the proper officer upon its registration, is its
charter. The law usually determines the general powers, rights, privileges, liabilities,
and responsibilities of corporations : within certain limits, however, many of these legal
incidents may be regulated by contract.

An Act of Incorporation is an Act creating an artificial or fictitious person, the
peculiarity of which is that it has a legal existence separate and distinct from the
individual units of which it is composed. Its members may change, but the corporate
entity remains ; it has perpetual succession and it ne\er dies, unless its dissolution or
winding-up is brought about by operation of law.

In the Merchants' Bank of Canada v. Smith (1884), 8 Ont. App. 15, 8 S.C.R. (Can.)
512, it was held that a receipt given by a warehouseman was a valid I'eceipt within the
Dominion Act, 35 Vic. c. 5, s. 46, and that that Act was intra virei the Dominion Parlia-
ment under sub-sees. 2 and 15 of sec. 91, relating to the regulation of trade and com-
merce and banking. In Tennant v. Union Bank of Canada (1894), App. Cas. 31, it was
decided that warehouse receipts, taken in security by a bunk in the course of the
business of banking, are matters coming with the class of subjects described in those
sub-sections, and that the provisions of the Dominion Bank Act, Rev. Stat. (Can.)
c. 120, sees. 45, 53 and 54, respecting such receipts, are intra virei<.

§§ 182-183.] POWERS OF THE PARLIAMENT. 570

What an Act of incorporation does, "is to create a legal and artificial person with
capacity to carry on certain kinds of business, which are defined, within a defined area,
but it may nevertheless be subject, in carrj'ing on that business, to the law of the
locality wherein it does so." In Re Grand Junction R. Co., 44 Upper Canada Reps. 317,
Cameron, .1. , said : "Creating a corporation can hardly be said to be making a law ;"
and the same learned judge said, in Clegg r. Grand Trunk R. Co., 10 Ontario
Reps. 714: "I wish to be free to consider whether a coi-poration created by the
Dominion Parliament must not, outside of its corpoi"ate powers and functions, be
regarded as a single entity which is, as far as the exercise of civil rights are concerned,
not expressly provided for by the Act of incorporation, subject to the laws respecting
such rights within the Province in which it may carry on its authorized business or
exercise its corporate powers ; and whether in this respect a corporation can have any
greater or higher rights than a natural person." But Mr. Lefroy contends that,
although the Dominion Parliament can give to a corporation it is creating any powers and
functions it likes, outside "provincial objects" within the meaning of sub -sec. 11 of
sec. 92 of the British Xorth America Act, it can only regulate its exercise of civil rights
in respect to the classes of subjects enumerated in section 91. (Lefroy, Leg. Pow. iu
Canada, p. 626.)

§ 183. " The Issue of Paper Money."

The Federal Parliament has power to legalize or prohibit the issue of paper money.
Iu this respect it has received a grant of power conspicuously more liberal than that
which was intended, by the framers of the American Constitution, to be conceded to
Congress. At the time when that Constitution was framed general apprehension was
felt throughout the States at the dangerous strength acquired by the movement in favour
of paper money. Dtiring the War of Independence, the drain on the financial resources
of the country was very great, and consequently distress was wide-spread and deep-
seated. (Fiske, Critical Periotl of American History, p. 67.) In order to raise supplies
the Congress of the Confederation established an inconvertible paper currency. In 1780
the continental paper currency had become so discredited that it utterly collapsed. In
1786, it is said, that as starving men dream of dainty banquets, so a craze for fictitious
wealth, in the shape of paper money, ran like an epidemic through the country.
(Critical Period of American History, p. 168.) "Several States sought to apply the
paper money remedy for public distress ; each making the attempt in its own way. In
seven States, at least, the ' rag-money party,' as it was callefl, dominated the legisla-
tures. North Carolina issued a large amount of paper. It was no sooner placed in
circulation by the Government than the value of the paper dollar fell to seventy per
cent, of its face value. In South Carolina, paper money was issued, but the planters
and merchants refused to take it at its face value. In Georgia, paper money was made
a legal tender, and refusal to accept it was declared an offence. In Pennsylvania a
guarded attempt was made to issue money in the shape of bills of credit, which, however,
were not made legal tender for the payment of private debts, but the value of these bills
soon fell 12 per cent, below par. In New York a million dollars were issued in bills of
credit, which were made a legal tender, but their value similarly declined. A 'Rag-
Money Bill ' was passed in Xew Jersey, but the merchants of New York and Phila-
delphia, who traded with New Jersey, refused to accept the money, and it became
worthless. In Rhode Island the paper money agitation reached a white heat. Half a
million rioUars were issued in scrip to be loaned to the farmers on the security of a mort-
gage of their land. The merchants refused to take the paper dollars at their face value.
An act was passed commanding everyone to take paper money, as equivalent for gold,
under a penalty of .5000 dollars, and loss of the right of suffrage. The merchants there-
upon shut up their shops. A terrible crisis followeti. The unhappy little State was
nicknamed ' Rogues Island.' The rag-money movement was happily defeated in Massa-
chusetts. Shay's rebellion, in January, 17S7, brought matters to a climax, and

580 COMMENTARIES ON THE CONSTITUTIONT. [Sec.Sl-xiii.

hastened the calling of a Convention to frame a national Constitution." (Critical
Period of American History, p. 177.)

Consequently, when the Federal Convention met in August, 1787, its members had a
full knowledge of the dangers of a paper currency. When it was proposed to give the
government of the Union power to borrow money and emit bills on the credit of the
United States, Gouverneur Morris "recited the history of paper emissions and the per-
severance of the legislative assemblies in repeating them, though well aware of all their
distressing effects, and drew the inference that, were the national legislature formed,
and a war to break out, this ruinous expedient, if not guarded against, would be again
resorted to. He moved to strike out the power to emit bills on the credit of the United
States." If the government of the Union had credit, he said, it could borrow money
without bills ; if it had no credit such bills would be unjust and useless. Other
members expressed a mortal dread and hatred of paper money, and urged the necessity
of disarming the central government of such a power ; they regarded that as a favourable
moment to shut and bar the door against paper money for ever. James Wilson said
" paper money could never succeed whilst its mischiefs were remembered, and so long as
it could be resorted to it would discourage other resources." John Langdon "would
rather reject the whole plan of Union than give the power." Accordingly, the authority
to issue bills of credit that would be a legal tender was refused to the Federal Govern-
ment by the votes of nine States against two. " Thus," wrote Madison " the pretext for
a paper currency, and particularly for making bills a legal tender, either for public or
private debts, was cut off." (Bancroft, Constit. Hist. ii. p. 134.)

" This is the interpretation of the clause, made at the time of its adoption alike by
its authors and by its opponents, accepted by all the statesmen of that age, not open to
dispute because too clear for ai'gument, and never disputed so long as any one man who
took part in framing the Constitution remained alive. History cannot name a man who
has gained enduring honour by causing the issue of paper money." (Bancroft, Constit.
Hist. ii. pp. 1.34-5-6.)

"In tlie plan of government concerted between the members from Connecticut,
especially Sherman and Ellsworth, tliere was this further article : ' That the legislatures
of the individual States ought not to possess a right to emit bills of credit for currency,
or to make any tender laws for the payment or discharge of debts or contracts in any
manner different from the agreement of the parties, or in any manner to obstruct or
impede the recovery of debts, M^hereby the interests of foreigners or the citizens of any
other State may be affected.' The committee of detail had reported: 'No State, without
the consent of the legislature of the United States, shall emit bills of credit.' With a
nobler and safer trust in the power of truth and right over opinions, Sherman, scorning
compromise, cried out : ' This is the favourable crisis for crushing paper money,' and,
joining Wilson, they two proposed to make the pi'ohibition absolute. Gorham feared
that the absolute prohibition would rouse the most desperate opposition ; but four
northern States and four southei'n States, Marj'land being divided. New Jersey absent,
and Virginia alone in the negative, placed in the Constitution these unequivocal words :
' No State shall emit bills of credit.' The second part of the clause, 'No State shall
make anj'thing but gold and .silver coin a tender in payment of debts,' was accepted
without a dissentient State. So the adoption of the Constitution is to be the end for ever
of paper money, whether issued by the several States or by the United States, if the
Constitution shall be rightly interpreted and honestly obeyed." {Id. pp. 136-7.)

Never were the founders of a plan of government more resolved to deprive a
legislative body of a legislative power than were the framera of the Constitution of the
United States of America, in their determination not to clothe Congress with authority
to issue paper money. At the same time, they created a judicial tribunal to interpret
and uphold that Constitution, and the time came when that tribunal decided, in solemn
judgment, that the Constitution had dejure actually granted to Congress a power which
its authors had openly denied it. On 25th February, 186*2, during the financial strain of
the civil war. Congress passed an Act making the United States treasury notes lawful
money. It was sought to justify this measure on the ground that Congress had power
to coin money ; that it had the power to borrow money on the credit of the United
States ; that it had power to declare and carry on war, and that to issue treasury notes
and make them legal tender was a necessary incident of the combined power to coin and

§ 183.] POWERS OF THE PARLIAMENT. 581

borrow money and prosecute a war. The validity of this Act was tested in the Supreme
Court, and a number of conflicting decisions were given thereon. In the case of Willard
t;. Tayloe, 1870, 8 Wall. 5.57, the Court, as then constituted, decided that the Act could
not be constitutionally applied to contracts in existence prior thereto, and that a contract
entered into before the Act must be paid in coin ; in Hepburn r. Griswold, 1870, 8 Wall.
603, it was decided that making bills of credit a legal tender was inconsistent with the
spirit of the Constitution, and in violation of it.

These decisions were afterwards revised and overruled by the Court, when diflFerently
constituted, which decided that the Act of Congress was valid. (Legal Tender Cases
[1871], 12 Wall. 4.57.) It was there stated by the Court that the true rule of construc-
tion was to keep in view the object for which powers were granted. It was impossible
to know what the non-enumerated powers are, and what is their nature and extent,
without considering the purpose they were intended to subserve. These purposes were
left to the discretion of Congress, subject only to the restrictions that they be not pro-
hibited, and be necessary and proper for the carrying into execution the enumerated
powers. It is not iudispensable to the existence of any power, claimed for the Federal
Ck)vemment, that it can be found specified in words in the Constitution, or clearly and
directly traceable to some one of the specified powers. Its existence may be deduced
from more than one of the substantive powers expressly defined, or from them all com-
bined. It is allowable to group together any number of them, and infer from them all
that the power claimed has been conferred. (Baker, Annot. Const, p. 15.)

In time of peac-e (1878) an Act of Congress was passed authorizing the issue of
treasurj- notes and making them a legal tender. The Act was sustained not on the
ground that it was a ^^ar power, but on the ground that it was an inherent incident of
the Federal authority, under the power to borrow money on the credit of the United
States, and to issue circulating notes for the money borrowed. The authority of
Congress to define the quality and force of these notes, as currency, was as broad as the
like power over metallic currency under the power to coin money and regulate the value
thereof. Under the two powers, taken together, Congress was authorized to establish
a national currency, either in coin or in paper, and to make that currencj' lawful money
for all purposes, as regards the national government or individuals, and this whether in
time of war or peace. (Juilliard r. Greenman [lJ!84], 110 U.S. 421. Baker, Annot.
Const, pp. 15 and 19.)

Referring to these conflicting decisions of the Supreme Court on a constitutional
question of great moment, Bryc-e says : —

" Two of its later acts are thought by some to have affected public confidence. One
of these was the reversal, first in 1871, and again, upon broader but not inconsistent
grounds, in 1884, of the decision given in 1H70, which declared invalid the Act of
Congress making government paper a legal tender for debts. The original decision of
1870 was renderetl by a majority of five to three. The Court afterwards changed
by the creation of an additional judgeship, and by the appointment of a new member
to fill a vacancy which occurred after the settlement, though before the delivery,
of the first decision. Then the question was brought up again in a new case between
different parties, and decided in the opposite sense (i.e., in favour of the power of
Congress to pass legal tender Acts) by a majority of five to four. Finally, in 1884,
another suit having brought up a point practically the same, though under a later statute
passed by Congress, the Court determined with only one dissentient voice that the
power existed. This last decision excited some criticism, especially among the more
conservative lawyers, because it seemed to remove restrictions hitherto supposed to
exist on the authority of Congress, recognizing the right to establish a forced paper
currency as an attribute of the sovereignly of the national government But be the
decision right or wrong, a point on which high authorities are still divided, the reversal
by the highest court in the land of its own previous decision may have tended to
unsettle men's reliance on the stability of the law ; while the manner of the earlier
reversal, following as it did on the creation of a new judgeship and tlie appointment of
two justices, both known to be in favour of the view which the majority of the court
had just disapproved, disclosetl a weak point in the constitution of the tribunal which
may some day prove fatal to its usefulness." (Bryce, Amer. Com. vol. i. p. 263.)

582 COMMENTARIES ON THE CONSTITUTION. [See. 61-xiv.

Development of Implied Powers. — " The three lines along which this develop-
ment of the implied power of the Government has chiefly progressed," says Bryce,
" have been those marked out by the three express powers of taxing and borrowing
money, of regulating commerce, and of carrying on war. Each has produced a progeny of
subsidiary powers, some of which in their turn have been surrounded by an unexpected
offspring. Thus from the taxing and borrowing powers there sprang the powers to
charter a national bank and exempt its branches and its notes from taxation by a State
(a serious restriction on State authority) to create a system of custom-houses and
i-evenue cutters, to establish a tariff for the protection of native industry. Thus the
regulation of commerce has been construed to include legislation regarding every kind of
transportation of goods and passengers, whether from abroad or from one State to
another, regarding navigation, maritime and internal pilotage, maritime contracts, &c.,
together with the control of all navigable waters, the construction of all public works
helpful to commerce between States or with foreign countries, the power to prohibit
immigration, and finally a power to establish a railway commission and control all inter-
state traffic. The war power proved itself even more elastic. The executive and the
majority in Congress found themselves, during the War of Secession, obliged to stretch
this power to cover many acts trenching on the ordinary ^rights of the States and of
individuals, till there ensued something approaching a suspension of constitutional
guarantees in favour of the Federal Government. The courts have occasionally gone
even further afield, and have professed to deduce certain powers of the legislature
from the sovereignty inherent in the National govei-nment. In its last decision on
the legal tender question, a majority of the Supreme Court seems to have placed upon
this ground, though with special reference to the section enabling Congress to borrow
money, its affirmation of that competence of Congress to declare paper money a legal
tender for debts, which the earlier decision of 1871 had referred to the war power.
This position evoked a controversy of wide scope, for the question, what sovereignty
involves, is evidently at least as much a question of political as legal science, and may
be pushed to great lengths upon considerations with which law proper has little to do."
<Bryce, Amer. Com. I. pp. 371-2.)

51. (xiv.) Insurance^^*, other than State insurance^®^ ; also
State insurance extending beyond the limits of the State
concerned :

Historical Note. — This sub-section was first introduced in the Adelaide draft in
the following form : — "Insurance, including State insurance extending beyond the limits
of the State concerned." In Committee, it was amended by omitting the words "includ-
ing State insurance extending," &c. Mr. Walker opposed the exception of State
insurance. (Couv. Deb., Adel., pp. 779-82.)

At Sydney, a suggestion of the Legislative Council of New South Wales to insert
" Assurance and " was negatived as unnecessary ; and another suggestion by the same
Chamber to omit the words "excluding State insurance," &c., was also negatived, A
drafting amendment was subsequently made. (Conv. Deb., Syd., 1897, pp. 1075-6.)

§ 184. " Insurance."

Insurance is the act of insuring or assuring against loss or damage bj' a contingent
event. A contract whereby for a stipulated consideration, called a premium, one i)arty
called the insurer undertakes to indemnify or guarantee anotlier party called the insured
against loss, is called fire, accident or marine insurance, as the case may be ; a contract
whereby the insurer guarantees the insured against the negligence or default of another
is called indemnity insurance ; a contract whereby tho insurer undertakes to pay the

4§ 1S4 185.] POWERS OF THE PARLIAMENT. 583

representatives or nominees of the insured a certain sam of money, iipon the death of
the insured, is called life insurance ; a contract containing a combination of life insur-
ance with investment, as that if the insured die before a specified time the insurance
money becomes due at once and is payable to the representatives or nominees of the
insured, but if the insured survives that time it is payable to himself or at his direction
— is called endowment insurance.

It has recently become usual to speak of "assurance" when the contingency
" assured " against is one which must happen sooner or later — e.g., death ; and to speak
of " insurance " when the contingency " insured " against is one which may never happen
— e.gr., fire or shipwreck. The word "insurance," however, is still used generally as
including both insurance and assurance, and that is clearly its scope in this sub-section.
(See Historical Xote, iupra.)

Under the Constitution of the United States, which gives no power to Congress to
deal with insurance, it has been decided that the business of insurance is not commerce ;
and a corporation of one State doing insurance in another is not engagetl in commerce
among the States. (Liverpool Insurance Co. f. Massachusetts, lOWall. 566. ) Issuing
a policy of insurance is not a transaction of commerce, and so is not subject to congres-
sional regulation. (Paul v. Virginia, 8 Wall. 168.) A law of a State which requires
insurance companies of other States to file bond and security, &c., before issuing
policies in such State, is not a regulation of commerce, and is constitutional. (Paul v.
Virginia, 8 Wall. 168 ; Doyle v. Continental Insurance Co., 94 U.S. 535.)

The Federal control over insurance extends, in the same manner as the Federal
control over banking, to any form of insurance throughout the Commonwealth, except
insurance organized and carried on by the government of a State and confined to the
limits of the State.

§ 185. ''Other than State Insurance."

These are words of exception, reserving to a State the control over insurance
business organized and conducted by the government of the State. (See rule for constni-
ing exceptions, sttpra, % 180, "Other than State Banking.")

0\'ERLAPPiso Powers. — The extent to which the law relating to insurance may, for
a time, be considered as a divisible poM'er, partly exercised by the Federal Parliament
and partly exercised by the State legislatures, is illustrated by one of the leading
Canadian cases. (Citizens' Insurance Co. v. Parsons, 7 App. Cas. 96. [1881].) As an
insurance case, the Citizens" Insurance Co. v. Parsons is appropriately mentioned in
connection with this sub-section, but it is a remarkably apt exemplification of the com-
peting and overlapping operation of powers in a Federal Constitution, and of the manner
in which one subject may be governed by two sets of laws. Thus a power to make laws
with respect to insurance is apparently a wide power. But does it include the
power to regulate the manner in which contracts relating to insurance must be made ?
Suppose the Federal Parliament should pass a Federal Insurance Act, providing for the
incorporation of insurance companies and defining their legal rights, privileges, duties,
and responsibilities : Could such a law remove insurance companies, and the subject of
insurance, absolutely from the domain of State legislation ? The case of the Citizens'
Insurance Co. v. Parsons throws some light on this problem, though it is necessary to
bear in mind the caution already given that the Canadian Constitution, ^rith its two
areas of exclusive powers, is unlike the Constitution of the Commonwealth.

In that case the question raised was as to the constitutionality of the Ontario Act, 39
Vic. c. 24, to secure uniform conditions in policies of fire insurance, and whether such
an act was %iltra vires as being in excess of provincial authority. This company was
incorporated under an Act passed by the Dominion Parliament, which claimed
jurisdiction to deal v,'ith iusurance, not by virtue of a specific grant of power (as in the
Constitution of the Commonwealth), but by virtue of its exclusive power to regulate

584 COMMENTAUIES ON THE CONSTITUTION. [Sec. 51-xv.

trade and commerce and its residuary power to legislate for the peace, order, and good
government of Canada in respect of all matters not exclusively assigned to the Provinces.
A general insurance law, 38 Vic. c. 20, was passed by th| I>ominion Parliament, which,
among other things, required all insurance companies, wnether incorporated by foreign,
Dominion, or provincial authority, to obtain licenses from the Minister of Finance as a
condition of their carrying on business within the Dominion. Such licenses could only
be granted upon compliance with the conditions of the Act. The legislature of Ontario
passed the Act 39 Vic. c. 24, providing that^fcertain conditions set forth in the schedule
thereto should be deemed to be part of every policy of fire insurance, thereafter entered
into in Ontario, with respect to any property therein ; that such conditions should be
printed on every policy with the heading " statutory conditions ; " that if a company or
insurer desired to vary such conditions, or to omit any of them, or to add new conditions,
these variations should be added in conspicuous type. This Act was passed by the
legislature of Ontario under the exclusive power of the Provinces to pass laws in
relation to "property and civil rights in the Province." (British North America Act,
sec. 92, subs. 13.)

The Act Mas impeached by the Citizens' Insurance Co. as an excess of legislative
power, and as an encroachment on the jurisdiction assigned to the Dominion Parliament.
The Privy Council upheld the Act on the ground that it related to property and civil
rights within tho Province. In delivering the judgment of the Board, Sir Montague E.
Smith said that "property and civil rights " were sufficiently large to embrace, in their
fair and ordinary meaning, rights arising from contracts, and such rights were not
included in any of the enumerated classes of subjects exclusively assigned to the
Parliament of the Dominion by sec. 91 of the British North America Act. In looking
at section 91, it would be found not only that there is no class including, generally,
contracts and the rights arising from them, but that one class of contracts is mentioned,
namely, "bills of exchange and promissory notes" (sub-sec. 18) which it would have
been unnecessary to specify, if authority over all contracts and the rights arising from
them had belonged to the Dominion Parliament.

The difference between the Canadian Constitution and that of the Commonwealth in
respect to insurance is: — (1) That the Parliament of the Dominion is not specifically
assigned jurisdiction in reference to that subject ; its jurisdiction is based on its general
and residuary power ; whereas the Parliament of the Commonwealth is explicitly
empowered to make laws in respect to insurance ; (2) that the Provinces of Canada are
assigned exclusive authority to make laws with respect to " property and civil rights,"
whereas the States of the Commonwealth are given no such exclusive power, their
authority over ' ' property and civil rights " being part of their general and residuary
power. By virtue of tho power reserved to the State Parliaments, under sec. 107 of
this Constitution, they would be able to pass laws determining the manner in which
contracts should be made and the conditions and incidents presumed to be annexed
thereto, in the absence of express agreement to the contrary. And siich laws would be
binding on companies incorporated by Federal law, until they became inconsistent with
the law of the Commonwealth. Whether the Federal Pai-liament could pass laws
determining the manner in which Federal corporations should enter into contracts is a
question for judicial determination when the case arises.

51. (xv.) Weights and measures^^:

Historical Note. — The Constitution of the United States empowers Congress " to
fix the standard of weights and measures." (Art. I. sec. 8, sub-s. 5.) " Weights and
measures" are specified in the British North America Act (sec. 91, sub-s. 17). Earl
Grey's Committee in 1849 proposed to give the General Assembly legislative power as to
the regulation of weights and measures (p. 85, Hupra). This subject was also included
in Wentworth's Memorial in 1857 (p. 94, supra) in the Federal Council of Australasia

§§ 186-187.] POWERS OF THE PARLIAMENT. 585

Act, 1885 (p. 112, 8tqjra)y aod in the Commonwealth Bill of 1891. It appeared in the
Adelaide draft of 1897, and was adopted without debate.

§ 186. "Weights and Measures.'*

The power to fix the standard of weights and measures is necessarih- a branch of
the power to regulate trade and commerce ; and it could, no doubt, have been exercised
by the Federal Parliament even if this sub-section did not appear in the Constitution.
It is not au exclusive power vested in the Federal Parliament, as against the States.
The Federal Parliament is under no immediate obligation to occupy the ground capable
of being covered by legislation of this description. Until it does so the States will
continue to regulate the local systems of weights and measures ; and their laws will not
be superseded until the Federal Parliament passes a uniform system applicable to the
whole of the Commonwealth. The States have already adopted common standards of
weights and measures, and consequently Federal legislation may not be necessary, until
the time is ripe for the adoption of a new and general reform, such as the metric system,
which in America has been rendered lawful but not obligatory. "I think," says
Burgess, " that is an unfortunate beginning. It may introduce great confusion where
we now have substantial uniformity. Under existing conditions, it is certainly better
either to do nothing at all, or to make some system obligatory as well as lawful."
(Burgess, Political Sc. II. p. 141.)

51. (xvi.) Bills of exchange^^" and promissory notes :

Historical Note. — This sub-section was adopted from the British North America
Act (sec. 91, sub-s. 18), and the Federal Coimcil of Australasia Act, 1S85. It appeared
in the Drafts of 1891 and 1897, and was adopted by both Conventions without debate.

§ 187. "Bills of Exchange."

Bills of exchange and promissory notes are a species of mercantile currency and
derived from the customs of trading communities and regulated and protected by law.
They are otherwise known as " negotiable instrimients " which when drawn according
to legal forms, signed by the parties intended to be bound, and duly stamped as
required by revenue laws, are regarded as incontestable acknowledgments of debts,
fixing a precise time for paj'ment and passing from hand to hand in a manner somewhat
similar to bank notes.

Negotiable instruments, such as bills of exchange and promissorj' notes, come tmder
a branch of the law of contracts. It is worth noticing that, strictly speaking, this is
the only branch of the law of contracts (with the possible exception of "insurance," see
Note, § 185, supra) Mhich is specifically eniimerateti in the list of powei-s confeiTed on
the Federal Parliament. It is true that "marriage" is found in sub-sec. 21, but
marriage is something more than a contract ; it is a legal status involving an aggregation
of rights and duties determined by law. This assignment of one or two isolated
classes of contracts to Federal jurisdiction may, when read in conjunction with the
maxim exjtressio tinius excluiio arteritis, lead to important consequences in the interpre-
tation of the Constitution, when the question at issue is whether a State law relating
to contracts is to prevail in regulating a subject assigned to the Federal Parliament,
such as banking, insurance, and corporations. This question was discussed in the
Citizens' Insurance Co f. Parsons, 7 App. Cas. 96. In the course of the judgment in
that case, sustaining the Ontario law of fire insurance contracts, the Privy Council laid
stress on the fact that among the subjects assigned to the Dominion Parliament there
was no class including, generally, contracts and the rights arising from them, but that
one class of contracts was enumerated, namely, " bills of exchange and promissory

586 COMMENTARIES ON THE CONSTITUTION. [See. 51- xvii.

notes." which it would have been unnecessary to specify, if authority over all contracts
and the rights arising from them had belonged to the Dominion Parliament. (Note,
§ 185, supra.)

51 (xvii.) Bankruptcy and insolvency^^^ :

Historical Note. — The Constitution of the United States empowers Congress "to
establish uniform laws on the subject of bankruptcies throughout the United States."
(Art. I. sec. 8, sub-s. 4.) "Bankruptcy and insolvency" are enumerated in the British
North America Act, sec. 91, sub-s. 21. This sub-section was included in the draft
Commonwealth Bill of 1891, and afterwards in the Adelaide draft of 1897. At Sydney,
a suggestion by both Houses of the New South Wales Parliament, to add "and
lunacy," was negatived. (Conv. Deb., Syd., pp. 1076-7; and see Historical Note to
sub-s. 28.)

§ 188. " Bankruptcy and Insolvency."

" Nothing," says Sir Henrj^ Maine, "strikes the scholar and jurist more than this
severity of ancient systems of law towards the debtor, and the extravagant powers
which they lodge in the creditor." It brought many early States to the brink of ruin.
In early Athens enslavement for debt was a fundamental law. Such was the sanctitj' of
contract in the estimation of Roman law that during the history of the Republic there
was no mercy for the insolvent debtor. It was not until the time of Julius Caesar that a
debtor became entitled to his discharge on formally giving up everything to his creditors —
cessio honorum. This cesaio honorum marks the commencement of the true principle of
bankruptcy. (Ancient Law, p. 321 ; Poste's Gains, p. 347.)

" The early Teutonic codes exhibit the same Draconian severity as those of Rome
and Greece. The insolvent debtor falls under the power of his creditor, and is subject
to personal fetters and chastisement; and later on, among the Germans, the witepeow
might often be seen working out by his labours a debt that was due to his master. It i>i
not a little remarkable, as Sir Frederick Pollock and Professor Maitland observe,
apropos of the above (History of English Law), that our common law knew no process
whereby a man could pledge his body or liberty for pa3'ment of a debt ; neither
at common law was the body of the debtor liable to execution for debt, except in the
case of the king's debtor. It is interesting to observe how imprisonment for debt came
about. No right of arrest on a judgment in debt is given by the express words of any
Statute, but the law gave in certain cases a right to arrest a delinquent or defaulter for
the purpose of securing his appearance at trial, where, for instance, he was flj'ing the
realm ; and it came to be held, by some strange mediaeval logic, that wherever the law
gave this right of arrest on mesne process, a capias ad satisfaciendum would lie upon
the judgment itself (1795, 3 Salk. 286). Thus began the long and dreary annals of
bailiffs, sponging-houses, the Marshalsea and the Fleet." (p]ncyo. Laws of Eng. vol. i.
pp. 483-4. )

The historical distinction between bankruptcy and insolvency is, that insolvency
laws were intended for the benefit and relief of ordinary private debtors, poor and
distressed, but honest ; whilst bankruptcy laws were those specially designed and
passed for the protection of creditors against insolvent traders and particularly against
fraudulent traders. The embryo of English bankruptcy legislation is to be found in
the Statute 34 and 35 Henry VIII. c. 4, " against such as do make bankrupt." This
Act recited that :

" Divers and sundry persons, craftily obtaining into their hands great substance of
other men's goods, do suddenly flee to parts unknown, or keep their houses, not
minding to pay or restore to any their creditors their debts and duties, but at their own
wills and pleasures consume the substance obtained by credit of other men for their own
pleasure and delicate living, against all reason, equity, and good conscience."

Genkkal Scope. — Bankruptcy and insolvency legislation is a most comprehensive
subject. Generally stated, it embraces a large part of the law regulating the relations
of debtor and creditor, before and during insolvency ; the acts or defaults of a debtor

^ 188.] POWERS OF THE PARLIAMENT. 587

■which render him amenable to what Wliarton in his work on Private International Law
<lescribes as "National execution against the assets of an insolvent debtor;" the
organization of insolvency and bankruptcy courts and proceedings in connection there-
with ; the investigation of the business dealings and transactions of an insolvent ; the
pursuit and recovery of assets fraudulently disposed of in order to defeat creditors ; the
rescission of voluntary conveyances and other transactions amounting to fraudulent
preferences ; the eflfect of legal executions at the suit of judgment creditors ; what is
protected from and what liable to such executions ; the seizure of an insolvent's assets
for the benefit of his creditors generallj- ; the distribution of his assets among his
«reditoi-s ; the release, partial or conditional or absolute, of an honest but unfortunate
<lebtor ; the pimishment of a dishonest debtor. Bankruptcy and insolvency law may
^Iso include compositions, compromises, arrangements, and assignments for the benefit
of creditors, as alternatives to compulsory insolvencj". The winding up of corporations
unable to pay their debts is an important branch of insolvency jurisdiction. An
insolvency law would also include all ancillary provisions necessary to prevent it from
being defeated.

A CoNCURBEXT Statb AND Fedbbal I'owek. — The bankruptcy and insolvency
jurisdiction is not an exclusive power of the Federal Parliament, like that con-
ferred on the Parliament of Canada ; it is a concurrent power. Until the Federal
Parliament has passed laws inconsistent with State laws bearing on the question, State
laws will remain in full force and effect ; and until the Federal Parliament has occupied
the whole area capable of being covered by the subject, the States may continue to pass
other bankruptcj' and insolvency law s, and may enforce them as long as they do not
conflict with Federal laws (sec. 107-109). The cases decided xmder the Constitution of
the United Stat«s are valuable as illustrating the operation of concurrent laws ; those
under the Canadian Constitution are onl^- useful as decisions showing what insolvency
and bankruptcy legislation is capable of including, and as showing what are merely
matters of local and private interests.

American Cases. — Under the Constitution of the United States a State legislature
inaj- enact a valid law on the subject of bankruptcy if there is no act of Congress at the
time in force establishing a uniform system of bankraptcy with which such law
conflicts. (Sturges r. Crowninshield, 4 Wheat. 122. Baker, Annot. Const, p. 44.)

This power does not exclude the right of a State to legislate on the same subject,
except when the power is actually exercised by the Federal legislature, and the State
laws conflict therewith. (Ogden i-. Saunders, 12 Wheat. 21:^. Id. p. 45.)

An insolvent debtor who has received a certificate of discharge from imprisonment,
imder a State insolvency law, is not thereby entitled to be discharged under an execution
against his person at suit of the federal government. (United States v. Wilson, 8
Wheat. •25.3. Id.)

Insolvency laws of one State cannot discharge the contracts of citizens of another
State, even where, by the terms of the contract, it is to be performed in the State
enacting the insolvency law. (Baldwin v. Bank of Newbury, 1 Wall. 234. Jd.)

A State insolvency law is valid, although enacted while a national bankruptcy law
is in force ; and takes efiect upon the repeal of the latter. (Tua v. Carriere, il7 U.S.
201. Id.)

State bankruptcy laws have no extra-territorial efiect and cannot operate upon
non-residents. (Baldwin r. Hale, 1 Wall, 223. Id. ]

A person in custody under a ca. -la., issued by the authority of a court of the United
States, cannot legalU* be released bv a State ofiicer acting under a State insolvency
law. (Duncan v. Darst, 1 How. 301.' Id.)

A discharge from bankruptcy under a State law is no bar in the courts of the United
States or of another State to non-resident creditors. (Gilman v. Lockwood, 4 'Wall. 409.
Id.)

The power of Congress to enact bankruptcy laws is not limited to the enactment of
such laws as existed in England at and prior to the adoption of the Constitution. {Re
Klein, 1 How. 277. Id.)

Federal laws ma\- relieve against debts contracted prior to the enactment of such
laws. (Re Klein, 1 How. 277 ; Carpenter v. Pennsylvania, 17 How. 456. Id.)

588 COMMENTARIES ON THE CONSTITUTION. [Seo.51-j

Canadian Cases. — The legislature of Quebec passed an act for the relief of a benefit
and benevolent society, named L'Union St. Jacques de Montreal ; imposed a forced
commutation of their existing rights upon two widows who were annuitants of the society,
under its rules, reserving to them the rights so impaired in the future possible event of
the improvement in the affairs of the society. In an action which came before the Privy
Council, on appeal, this law was attacked on the ground that it dealt with insolvency.
The Privy Council held that this was clearly a local and private matter within the
competence of the provincial legislature, in the absence of federal legislation dealing with
insolvency in a manner applicable to the circumstances. (L'Union St. Jacques de
Montreal v. Belisle, L.R. 6 P.C. 31.)

' ' Alluding to the hypothesis of a law having been previously passed by the Dominion
Parliament, to the effect that any Association of that particular kind, throughout the
Dominion, on certain specified conditions, assumed to be exactly those which appeared
upon the face of the statute in question, should thereupon ipso faclo fall under the legal
administration in bankruptcy or insolvency, the Privy Council said they were by no
means prepared to say that if any such law as that had been passed by the Dominion
legislature it would have been within the competency of the provincial legislature
afterwards to take a particular Association out of the scope of a general law of
that kind, so competently passed by the authority which had power to deal with
bankruptcy and insolvency." (L'Union St. Jacques v. Belisle, L.R. 6 P.C. pp. 36-7;
Lef roy, Legisl. Power in Can. p. 684. )

In the case of Cushing v. Dupuy it was argued that the Canadian Insolvency Act,
1875, interfered with property and civil rights and was therefore ultra vires. In answer
to the objection the Privy Coixncil (per Sir Montagu E. Smith) said —

"It would be impossible to advance a step in the construction of a scheme for the
administration of insolvent estates without interfering with and modifying some of the
ordinary rights of property and other civil rights, nor without providing some moile of
special procedure for the vesting, realization and distribution of the estate, and the
settlement of the liabilities of the insolvent. Procedure must necessarily form an
essential part of any law dealing with insolvency. It is therefore to be presumed,
indeed it is a necessary implication, that the Imperial statute, in assigning to the
Dominion Parliament the subjects of bankruptcy and insolvency, intended to confer on
it legislative power to interfere with property, civil rights, and procedure within the
provinces, so far as a general law relating to these subjects might affect them." (5 App.
Cas. 415.)

In the Assignment for Creditors' Act, passed by the Legislature of Ontario (Rev.
Stat., 1887, c. 124, sec. 9) it was provided that an assignment for the general benefit of
creditors under that Act should take precedence of all judgments and executions not
completely executed by payment, subject to any lien of an execution creditor for his
costs. The validity of this Act was called into question in the case of the Attorney-
General of Ontario v. the Attorney-General of Canada, on the ground that it encroached
on the Federal power in respect of insolvency. In the judgment of the Privy Council it
was said —

"It is not necessary, in their Lordships' opinion, nor would it be expedient, to
attempt to defijie what is covered by the words ' bankruptcy ' and ' insolvency ' in sec.
91 of the British North America Act. But it will be seen that it is a feature common to
all the systems of bankruptcy and insolvency to which reference has been made, that the
enactments are designed to secure that in the case of an insolvent person his assets shall
be rateably distributed amongst his creditors, whether he is willing that they shall be so
distributed or not. Although provision may be made for a voluntary assignment as an
alternative, it is only as an alternative. In reply to a question put by their Lordships,
the learned counsel for the respondent were unable to point to any scheme of bankruptcy
or insolvency legislation which did not involve some power of compulsion by process of
law to secure to the creditors the distribution amongst them of the insolvent debtor's
estate. In their Lordships' opinion, these considerations must be borne in mind when
interpreting the words ' bankruptcy ' and ' insolvency ' in the British North America
Act. It appears to their Loidships that such provisions as afe found in the enactment
in question, relating as they do to assignments purely voluntary, do not infringe on the
exclusive power conferred upon the Dominion Parliament. They would observe that a
system of bankruptcy legislation may frequently require various ancillary pio visions for the
purpose of preventing the scheme of the Act from being defeated. It may be necessary for

§ 188.]

POWERS OF THE PARLIAMENT. 589

this purpose to deal with the effect of executions and other matters which would otherwise
be within the legislative competence of the provincial legislature. Their Lordships do
not doubt that it would be open to the Dominion Parliament to deal Mith such matters
as part of a bankruptcy law, and the pro^incial legislature would doubtless be then
precluded from interfering with this legislation, inasmuch as such interference would affect
the bankruptcy law of the Dominion Parliament. But it does not follow that such
subjects as might properly be treated as ancillary to such a law, and therefore within the
powers of the Dominion Parliament, are excluded from the legislative authority of the
provincial legislature when there is no bankruptcy or insolvencj' legislation of the
Dominion Parliament in existence." (Per Lord HerscheU, 1894, App. Cas. p. 200.)

In conformity with the dicta of the Privj- Council in the above case, the Supreme
Court of Nova Scotia, in Kinney r. Dudman, 2 Russ. and Chess. 19, held that sec. 59 of the
Dominion Insolvent Act of 1869, .32 and 33 Vic. c. 16, was witliin the competence of the
Dominion Parliament, though it provided that no lien upon the property of an insolvent
should be created for a judgment debt by the issue of an execution, or by levjing there-
under, if before the pajTnent over to the plaintiff of the monej's levied the estate of the
debtor had been assigned or placed in liquidation ; thus overriding existing provincial
legislation which gave to a creditor a lien on his debtor's property by the levy of his
execution on it.

In McLeod v. McGuirk, 15 N. Bruns. (2 Pugs.) 248 (1874), Ritchie, C.J., expressed
a doubt whether section 81 of the Federal Insolvent Act of 1869, 32 and 33 Vic. c. 16,
restricting landlord's preferential lien for rent to one year, was not ultra vires. Mr.
Lefroy says that the decision of the Privj- Council in Cushing v. Dupuy may be
considered to have resolved the doubt in favour of the Dominion Parliament ; and to
have shown that the view of Wetmore, J., in McLeod's case, that if the Act had
attempted to take away the landlord's right of distress it would have been tdtra virts,
was erroneous. So the decision of Wetmore, J., in McLeod v. Wright, 17 N. Bruns.
(1 Pugs, and Burb.) 68 (1877), that sec. 89 of the Insolvent Act of 1869— which declared
null and void all sales, transfers, &c., bj' any person in contemplation of insolvency by
way of security to any creditor, whereby the latter obtains an unjust preference — was
■ultra vires, seems to have been equally erroneous. (Lefroy, Leg. Pow. p. 439.)

The Dominion Parliament passed an Act, 42 Vic. c. 48, intituled "An Act to
provide for the liquidation of the affairs of building societies in the Province of Quebec."
It recited that " whereas a large number of persons of limited means have invested their
earnings in building societies in the Province of Quebec, and on account of the long
period of depression such persons are exposed to lose their earnings for want of means
to continue the payment of their contributions, and it is expedient to come to their relief
by providing a speedy and inexpensive mode of liquidating the affairs of such societies in
the said Province." It was enacted that liquidation might be resolved upon by a general
meeting, after notice ; and made other necessary provisions for the liquidation of such
societies, whether insolvent or not. In giving judgment, Dorion, C.J. , said: — "This
Act is not in the nature of an insolvent law, for it is intended to apply to all building
societies, whether insolvent or not. It is, therefore, essentially an Act affecting civil
rights. . . The case of L'Union St. Jacques de Montreal r. Belisle is in point."
(McClanaghan v. St. Ann's Mutual Building Society [1880] 24 Lower Can. Jur. 162.) It
was held by Robertson, J., in re. Iron Clay Brick ilanufacturing Co., 19 Ont. Rep. at
pp. 119-20, that the Ontario Joint Stock Companies Winding-up Act, 1887, c. 183, had
no application in a case where a winding-up was sought by a Creditor on the grounds that
the company was insolvent, the provincial legislature having no jurisdiction in matters
of insolvency. (Lefroy, Leg. Pow. p. 458.)

In re Killam, 14 Can. L.J. (N.S.) 242, Savary, J., in reference to the Nova Scotia
Act for the relief of insolvent debtors, which provided for discharge from prison of a
debtor on assignment of his property in trust to pay his debts, said : — ' ' So long as the
party seeking the benefit of that chapter has not become insolvent under the Dominion
statute, all the proceedings under it are valid and effectual, for they only relate to
property and civil rights ; but as soon as the Dominion statute on insolvency is invoked

590 COMMENTARIES ON THE CONSTITUTION. [See. 51-xvii,

that chapter has no more force as to him or his case, and the relief it contemplates can
only be obtained under the Dominion statute. He is then in bankruptcy or insolvency,
within the meaning of the British North America Act, and the Insolvent Act of Canada,
therefore, attaches with exclusive authority upon his person and the property. When
and where that chapter conflicts or operates inconsistently with the Dominion Insolvent
Act of 1869 or 1875, it is superseded, and must be treated as repealed by the concluding
clause of section 154 of the former Act or section 149 of the latter. In any instance where
it does not so conflict, and its operation does not become inconsistent with either of
those Acts, there is nothing to hinder its provisions being carried out, and quoad that
case it is an Act int7-a vire.i, unrepealed, and by the Dominion Parliament unrepealable."
(14 Can. L. J., N.S., p. 242. Lefroy, Leg. Power, 531.)

In Quirt v. The Queen, 19 S.C.R. (Can.) 517, the Supreme Court of Canada held that
an Act of the Dominion, 33 Vic. c. 40, reciting the insolvency of the Bank of Upper
Canada, and providing for its winding up, and for a fair and equitable adjustment and
settlement of the claims of all creditors, was intra vires. Strong, C.J. , considered that
the Privy Council had, in L'Union St. Jacques de Montreal v. Belisle, held " that a
special statute, providing for the winding up of an incorporated company, would be
bankruptcy or insolvency legislation." Patterson, J. A., said : — "The words, ' bankriiptcj'
and insolvency ' in that article, no doubt, point primarily to the enactment of a general
bankrupt or insolvent law, as was well explained by Lord Selborne in delivering the
judgment of the Judicial Committee in L'Union St. Jacques de Montreal v. Belisle, but,
as I think is conceded by the same judgment, a special Act for the winding up of some
particular company which was insolvent and the distribution of its assets would not be
beyond the competency of the Dominion Parliament. . . It is easy to imagine cases
arising in connection with bankruptcy proceedings under a general law where special
legislation would be required, such, for instance, as the necessity for curing some
irregularity so as to validate or remove doubts as to titles taken under the proceedings.
There must be power to do this in one legislature or the other, and I take it to be obvious
that the power would be in the Dominion Legislature alone. Such legislation would be
like that now under consideration, special legislation addressed to an individual case, but
it would not on that account be iiltra vires." (Lefroy, Leg. Pow. p. 569.)

In the Primary Court (17 Ont. Rep. 618), Street, J., said : — " The right to pass a
general law of the kind must also involve the power to pass a special law to meet a
particular case ; the local legislature having no power to deal with insolvency legislation
at all are debarred from passing either a general or special Act, and the right must
therefore exist in the other legislature." In the Ontario Court of Appeal, Hagarty, C.J.,
and Osier, J. A., agreed that the Act was intra vira. Maclennan, J. A., said that "the
power of legislation over bankniptcy or insolvency, which was intended to be conferred
on the Dominion Parliament, was the same as had been exercised by the Imperial
Parliament and by the provincial legislatures before confederation, namely, the passing
of laws more or less general in their application, with proper courts and procedure and
machinery for thecarrN'ing them into effect, and not Acts declaring a particular person or
firm or corporation bankrupt or insolvent, or putting their affairs into a course of
liquidation." Legislative power of the latter kind was "intended to be given to the
legislatures of the provinces, as matters of property and civil rights, and matters of a
merely local and private nature." (17 Ont. App. 452. Lefroy, Leg. I'ow. p. 570.)

In his work on the Law of the Canadian Constitution Mr. Clement says : — " Tlie
judgment of the Supreme Court in Quirt v. Tlie Queen must be taken as conclusive uj)on
all Canadian Courts, that the power of the Dominion Parliament under the various
sub-sections of section 91, does extend to private Bill legislation so long as the subject-
matter legislated upon can be fairly said to fall within any of those sub-sections " (p. 355).
" Whether the Act in question, in Quirt v. The Queen, was properly regarded as witliiii
the category of bankruptcy and insolvency legislation," Mr. Lefroy says, "seems
somewhat doubtful, since the decision of the Priv}' Council in the Attorney-General of

§ 188.] POWERS OF THE PARLIAMENT. 591

Ontario v. the Attorney-General of Canada (1894), App. Cas. 189. (See per Burton, J.A.,
S.C., 20 Ont. App. at pp. 496-8.) Perhaps, however, such view may still be upheld on
the ground that the Act amounted to a bankruptcy proceeding by Parliament itself in
invituin against the insolvent institution. (And see per Street, J., in Regina r. County
of Wellington, 17 Ont. Rep. p. 618.) In the Court of Appeal in that case (17 Ont. App.
428), Hagarty, C.J.O., placed the Act in question rather under the Dominion power over
banking and the incorporation of banks, sajnng : — ' It perhaps may be objected that
such special legislation may be faulty. I hardly see this, where the special legislation is
in reference to settling the affairs of an institution wholly the creation of Parliament,
and wholly outside the creative powers of the pro^^nees.'" (Lefroy, Leg. Pow. p. 371.
As to Dominion Bankruptcj' and Insolvency Acts applying to one or more provinces
only see Hagarty, C.J.O., in Clarkson v. the Ontario Bank (15 Ont. App. 178. Lefrov,
Leg. Pow. p. 573).

In Allen v. Hanson, 16 Queb. L.R. 85, the Court of Queen's Bench in Quebec-
held that the Dominion Act 47 Vic. c. 39, provitling that the Dominion Winding-Up Act
should apply to incorporated trading companies " doing business in Canada, no matter
where incorporated," was intra vires, and confirmed an order granted upon the petition of
the liquidator, under a liquidation previously instituted under the Imperial Act, 1862,
in Scotland, and as ancillary to that principal winding up. Dorion, C.J., delivering the
judgment of the majority of the Court, said (p. 84-5) : — " It is evident that the Dominion
Parliament never intended to regulate, suspend or dissolve, hy the Winding-Up Act, any
corporation existing under British or foreign authority, but merely to regulate their
property and restrain their action in this country, which it undoubtedly had a right to
do so. The several legislative bodies in Canada can have no concern in what a foreign
corporation might do elsewhere ; they are onlj- interested in protecting the rights of the
creditors of such corporation upon their own property within this country, and more
particularly the right of their o%vn citizens and of resident creditors. . . The
provisions of the Winding-Up Act of Canada regulate the proceedings of our Courts to
enforce the rights of creditors and of shareholders in the prox)ert3- of such companies.
As they only relate to procedure, their operation is confined to property found within
the territorial limits of the jurisdiction of the Courts authorized to enforce them. For
the same reason, within such limits their operation can neither be regulated nor
restrained by any foreign legislation." This decision was confirmed by the Supreme
Court of Canada. Ritchie, C.J., said : — " All the Winding-Up Act, as I understand it,
seeks to do in the case of foreign corporations is to protect and regulate the property in
Canada, and protect the rights of creditors of such corporations upon their property in
Canada." (18 S.C.R. [Can.] p. 674. Lefroy, Leg. Pow. p. 629.)

In re Clarke and the Union Fire Insurance Company, 14 Ont. Rep. 618, Boj'd, C,
held that the Dominion Winding-Up Act, 45 Vic. c. 23, was iiUra vires of the Dominion
Parliament, as being in the nature of an insolvency law ; that it applied to all corporate
bodies of the nature mentioned in it all over the Dominion, and that the companj- in
question in that case, though incorporated under a provincial charter, was subject to its
provisions; and he observed: — "The case in the Supreme Court of the Merchants'
Bank v. Gillespie does not touch the status of the present company, which is a domestic
corporation Mitliin the territorial limits of Canada, whereas the company there in
question was, for the purpose of the Act, a foreign one domiciled in England." (Lefroj',
Leg. Pow. p. 631.)

In the Merchants' Bank of Halifax r. Gillespie, 10 S.C.R. (Can.) 312, the question
raised was as to the validity of winding-up proceedings under the Dominion statute, 45
Vic. c. 23, as the sole and principal winding-up of a company incorporated under the
English Act of 1862. The Supreme Court held that an order could not be made under
that statute for the winding-up of the Steel Company of Canada, which was a joint stock
company incorporated in England in 1874, under the Imperial Joint Stock Companies
Act, never incorporated in Canada, but having its chief place of business in Nova Scotia,

592 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xvii.

where it owned mines and works, while it owned no real estate elsewhere, but merely
occupied an office in Great Britain. 10 (S.C.R. [Can.] 312. Lefroy, Leg. Pow. p. 629.)

The Merchants' Bank of Halifax v. Gillespie was distinguished in re Briton Medical
Life Association, 12 Ont. Rep. 441, where it Avas held by Proudfoot, J., that the
Dominion Acts, 31 Vic. c. 48 and 34 Vic. c. 9, requiring foreign insurance companies
doing business in Canada to make a certain deposit with the Minister of Finance, were
intra vires, and an order was there made, on petition, for the distribution of the deposit
made by the English company in question among the Canadian policy-holders, notwith-
standing that proceedings to wind up the company were pending before the English
Courts. Proudfoot, J., observed, with reference to the Merchants' Bank of Halifax v.
Gillespie, that in that case there was no question of a deposit, and what was sought was
not the distribution of the deposit, but the general winding-up of the company (12 Ont.
447. Lefroy, Leg. Pow. p. 632.)

Imperial Bankruptcy Laws in the Colonies. —The question, how far English
Bankruptcy Statutes extend to the colonies, has been considered in a number of cases.
A decision of Lord Mansfield (cited Webb's Imperial Law 64) goes to show that "the
statutes of bankrupts do not extend to the colonies." In Ellis v. McHenry, L.R. 6 C.P.
228, it was, however, decided that the English Bankruptcy Act of 1861 (24 and 25 Vic.
c. 134), was of general application and binding within the colonies. In Callender Sykes
and Co. v. Colonial Secretary of Lagos (1891), App. Ca. 460, it was held that the English
Bankruptcy Act, 1869 (32 and 33 Vic. c. 71), applies to all the Queen's Dominions, and
therefore that an adjudication under that Act operates to vest in the trustee in bank-
ruptcy the bankrupt's title to real estate in Lagos, subject to the requirements of the law
of Lagos as to the mode of transfer of real estate.

The English Bankruptcy Act of 1883 (46 and 47 Vic. c. 52, s. 118), provides that the
English and Colonial Courts having jurisdiction in Bankruptcy and Insolvency shall
severally act in aid of and be auxiliary to each other in matters of bankruptcy. In the
case of Be Mann, 13 V.L.R. 590, Higinbotham, C.J., said : "The section of the Englisli
Act on which the application was made to our Court of Insolvency is a new section, and
if I may be allowed to say so, I think it is a very wise and excellent section and one
which should receive a liberal interpretation and should be cheerfully co-operated with
and acted upon by the Courts to which it applies. It is an enabling section as well as
an enjoining one, and applies to all British Courts having jurisdiction in bankruptcy or
insolvency." A Court which has no bankruptcy jurisdiction cannot act as auxiliary.
(Callender Sykes and Co. v. Col. Sec. of Lagos, 1891, App. Ca. 460.)

Colonial Bankruptcy Laws. — The inconvenience resulting from the absence of
uniform laws relating to insolvency and bankruptcy, operative throughout the Aus-
tralian communities, was illustrated in the case of the Union Bank r. Tuttle (1889),
15 V.L.R. 258. In that case the estate of the defendant had been sequestrated in New
South Wales. Before such order of sequestration, creditors of the defendant had seized
assets in Victoria under execution on judgments obtained in Victoria. By the law of
New South Wales the order for sequestration had relation back to a period antecedent
to the seizure by the creditors in Victoria. It was held that the retrospective operation
of the order for sequestration in New South Wales did not divest the title of the
execution creditors in Victoria. In giving judgment, Mr. Justice A'Beckett said : " The
order of sequestration under the law of New South Wales had relation back to a perio<l
antecedent to the seizure by the Victorian creditors, and it has been argued that this
Court, recognizing tlie operation of the sequestration in New South Wales, nuist do so to
its full extent, giving it in Victoria the retrospective operation which it would have had
in New South Wales, thus divesting the title of the execution creditors in Victoria.
No authority has been cited which supports this contention. Story's Conflict of Laws,
p. 412, and Geddes v. Mowat, 1 Glyn and J. 414, are against it. I hold that the judgment
creditors' rights are not displaced by the sequestration of the debtors' estate in New

§ 189]

POWERS OF THE PARLIAMENT. 593

South Wales subsequently to the seizure, and I bar the claim made on behalf of the
estate of Tuttle, the judgment debtor. The property seizetl is admittedly the property
of a bankrupt drm, of which Tuttle is a member, and I have not to decide anj-thing as
to how the debtor's interest in this property is to be sold. I merely decide that his
official assignee in insolvency cannot stop the sale of his interest in the chattels seized."

51. (xviii.) Copyriojhts^*^, patents of inventions'^ and
designs'^', and trade marks'*^ :

Historical Note. — The Constitution of the United States empowers Congress " to
promote the progress of science and usefvd arts, by securing, for limited times, to authors
and inventors, the exchisive right to their respective writings and discoveries." (Art. I.
sec. viii. sub-s. 9.) " CopjTights " are enumerated in sec. 91, subs. 23, of the British
North America Act. " Patents of Invention and Discovery" and " CopvTight " were
among the subjects which might be referred to the Federal Council, under the Act of
1885. In the Bill of 1891 the sub-clause was worded " Copyrights and patents of
inventions, designs, and trade marks." At Adelaide it was introduced in the same form,
■and at Melbourne a verbal amendment was made before the first report.

§ 189. "Copyright."

Copyright is the right which an author or artist has to prevent the re-publication ot
his published literary or artistic productions, including books, designs, drawings,
engra^^ngs, paintings, photographs, musical compositions, and dramatic pieces. It must
be distinguished from the property which an author has in his unpublished works, which
is sometimes loosely called " copyright." At common law and independently of statute
authors have property in their unpublished literary and artistic works. (Southey v.
Sherwood, 2 Mer. 435.)

Whether, before the Copyright Acts, authors had at common law any exclusive right
in their works after publication, is a question which has been the subject of much legal
argument, but as to which authority has been and is still di^•ided. In Millar v. Taylor
(4 Burr. 2303) it was held by a majority that at common law an author and his assigns
had a perpetual copyright in his published works, and that this right was unaffected
by the statute 8 Anne, c. 21. In Donaldson v. Becket (4 Burr. 2408), Millar v. Taylor was
overruled by the House of Lords, a majority l>eing of opinion that, though the common
law right existed, it had been taken away by the statute. The weight of modem opinion
seems to be against the existence of the common law right, but the question is now one
of merely historic interest, as copjTight in published works is now whoUy regulated by
statute. (Jefferys t;. Boosey, 4 H.L. Cas. 815; Read r. Conquest, 30 L.J. C.P. 209;
Wheaton v. Peters, 8 Pet. [U.S.] 591 ; Copinger on Cop\-right, 3rd. ed. pp. 27-35.)

The first Act which directly recognized copyright in books after their publication
was 8 Anne, c. 21, 1709, by which severe penalties were pro\'ided against infringers of
copyright, such rights being secured for a period of fourteen years from registration ; a
term which was afterwards extended to twenty eight years. CopjTight in prints and
engravings was established in 1735 by the Act of 8 Geo. II. c. 13 ; since amended by the
15 and 16 Vic. c. 12. Copj-rights in designs for manufactures was secured in 1787 by
27 (ieo. III. c. 38, which has been amended by sul>sequent Acts. By the Act 5 and 6
WilL IV. c. 65 the right of printing and publishing lectures belongs to the lecturer,
subject to compliance with certain conditions. (Caird v. Sime, 1887, 12 App. Cas. 326.)

By the Act 1 and 2 Vic. c. 59, passed in 18.38, the copvTnght of works published in

foreign countries is secured against infringement within the British Dominions, prx)vided

the law of those countries gives similar protection to the works of British authors.

Before the statute the courts would not protect a copyright belonging to a foreigner.

594 COMMENTARIES ON THE CONSTITUTION. [Sec. 51

(Delondre v. Shaw, 2 Sim. 237.) This Act was repealed and amended by 7 and 8 Vic. c.
12, which was afterwards amended by 15 and 16 Vic. c. 12. The last Imperial Act
relating to international copyright was 49 and 50 Vic. c. 33, passed in 1886, after the
holding of the international conference at Berne, where the draft of a copyright con-
vention was agreed to.

The Act 5 and 6 Vic. c. 45, parsed in 1842, amended and consolidated the law of
copyright in books, and is the law which now regulates literary property throughout the
Empire to this extent, that a copyright registered in England is valid and may be
enforced in the courts of every British pussession. This is one of the few Imperial
statutes passed during the present reign the operation of which extends to every part of
the Queen's Dominions. By this Act copyright in literary works is defined as the sole
and exclusive liberty of printing or otherwise multiplying copies of any subject ; and it
is declared to belong to the author and his assigns, and to endure for the whole term of
his life and for seven years after his death, or, if that term of seven years expires before
the end of forty-two years from first publication, then for such period of forty-two years.
Persons pirating a copyright work are liable to a special action for damages and may be
restrained by injunction. The protection of this Act also extends to musical compositions
and dramatic pieces. Sec. 15 prohibits her Majesty's colonial subjects, whatever may be
their local laws, from printing or publishing in the colonies without the consent of the
proprietor any work of which there is a copyright in the United Kingdom. It also
prohibits the importation into any British possession of any foreign reprint of works
first printed and published in the United Kingdom and entitled to a copyright.

In Routledge v. Low (1868), L.R. 3 H.L. 100, it was held that, notwithstanding the
fact that Canada had a Legislature entitled to pass laws concerning copyright, Canada
was included in the general words of sec. 29 of the Imperial Copyright Act of 1842.

That Act was afterwards amended by 10 and 11 Vic. c. 95 (1847), which provided
that in case the legislature of any British possession should pass an Act making due
provision for securing or protecting the rights of British authors in such possession, and
transmit the same to the Secretary of State, and in case Her Majesty should be of
opinion that such Act was sufficient for the purpose of securing to British authors
reasonable protection within such possession, it should be lawful for Her Majesty to
express Her Royal approval of such Act, and thereupon, by Order in Council, to suspend,
so long as the provisions of such Act should continue in force in such colony, tlie
provisions of the 5 and 6 Vic. c. 45, against the importing, selling, or exposing for sale
of foreign reprints of British copyright works.

The Royal assent was refused to the Canadian Copyright Bill of 1872 on the groimd
that it was repugnant to the provisions of the Imperial statute. In a despatch dated
15th June, 1874, addressed by Lord Carnarvon, Secretary of State for the Colonies, to
the Governor-General of Canada, his lordship pointed out that the effect of the Canadian
Constitution giving the Parliament of the Dominion power to legislate with respect to
copyright was to enable it to deal with colonial copyriglit within the Dominion, and that
it was not intended to interfere with the rights secured to authors by the Imperial Act
or to override the provisions of that Act. " The Imperial Copyright Act, 5 and 6 Vic.
c. 45," wrote his lordship, "is, as you are aware, still in force in its integrity throughout
British dominions, in so far as it prohibits the printing in any part of such dominions of
a book in which there is a subsisting copyright under that Act without the assent of the
owner of the copyright."

Under the power conferred by the Imperial Act, 10 and 11 Vic. c. 95, the Dominion
Parliament, in 1875, passed 31 Vic. c. 56 in order to secure to authors the reasonable
protection contemplated by the Imperial Act. It provides tliat any author domiciled in
Canada or any part of the British possessions, or being a citizen of a foreign State having
an international copyright treaty with Great Britain, should be entitled to copyright in
Canada for twenty-eight years, and renewal of it for fourteen years to himself, if he
were still alive, and if not to his widow and children, but to no one else, wlio might be

§ 189.] POWERS OF THE PARLIAMENT. 595

in possession of the copjTight, for an^' work, literarj', scientific, or artistic, printed and
published or reprinted or republished in Canada, with the reservation that the exclusive
privilege should cease in Canada at the same time that it expired for any work
anywhere else.

The conditions precedent to securing the protection of this Canadian Act were
(1) that such works should be recorded and copyrighted in Canada ; (2) that such works
should be printed and published, or reprinted or republished in Canada, or, in the case of
works of art, that they should be produced or reproduced in Canada, whether the}' were
so published or produced for the first time or contemporaneously with or subsequently to
publication or production elsewhere : provided that in no case should the exclusive
pri%ilege in Canada continue after it had expired elsewhere ; (3) that no immoral, or
licentious, or irreligious, or treasonable, or seditious work should be the subject of such
registration or copyright. By Clause 15 of the Act, works of which the cop\Tight had
been granted and were subsisting in the Unitetl Kingdom, and copjTight of which was
not secured or subsisting in Canada under any Canadian or Provincial Act, should, upon
being printed and published or reprinted or republished in Canada, be entitled to copy-
right under the Act ; but nothing in the Act should be held to prohibit the importation
from the United Kingdom of copies of such works legally printed there.

One legal result of this Canadian measure was that, if the proprietor of an English
copyright did not register and publish in Canada, foreign reprints could be imported
into Canada upon payment of a royalty, to be appropriated for his benefit. The reason
for this was that under the protection of the Imperial system, United States authors
could secure copyright in Great Britain and her possessions by publishing in England,
and thus secure the control of the Canadian market, whilst a Canadian author could not
obtain such pri\'ileges in the United States.

Her Majesty was empowered to assent to this Bill, by the (Imperial) Canada Copy-
right Act, 38 and 39 Vic. c. 53, and an Order in Council was then promulgated
suspending the provisions of 5 and 6 Vic. c. 45, so far as it prohibited the importation
into Canada of foreign reprints of books first published in tlie United Kingdom and
cop\'righted there.

The efiect of this combination of Canadian and Imperial legislation was considered
in the Canadian case of Smiles v. Belford (1877), 1 Ont. App. 436, in which an injunction
was applied for on behalf of the holder of an English copyright, under the Imperial Act,
5 and 6 Vic. c. 45, to restrain the defendants from publishing a reprint of the plantiflPs
work in Canada. The point was raised in this case, though afterwards abandoned by
counsel before the Court of Appeal, that the Imperial Parliament, by sub-sec. 23 of
section 91 of the British North America Act, had divested itself of all power respecting
British copjTight in Canada, and that the Canadian Copyright Act, 38 Vic. c. 88, had,
by virtue of the Imperial Canada Cop\Tight Act, 1875, 38 and 39 Vic. c. 53, superseded
the Imperial Copyright Act of 1842, and required all authors desirous of obtaining copy-
right in Canada to print and publish and register under the new Act, which the
plaintifis had not done. The defendant further contended that the provisions of the
Canadian Act must be complied with, in order to give copyright in Canada. Proudfoot,
V.C., refused to sustain these views and granted the injunction asked for. He said:
" There is nothing indicating an}' intention of the Imperial Parliament to abdicate its
power of legislation on matters of this kind." On appeal to the Ontario Court of
Appeal, this decision was affirmed. Burton, J. A., entirely concurred in the view of
Proudfoot, V.C. Referring to Routledge v. Low, in which it had been unsuccessfully
contended that as Canada had a legislature of her o^^'n she was not included in the
general Mords of section 29 of the Imperial Act, 5 and 6 Vic. c. 45, Avhereby that Act
was extended to every part of the British dominion, he said : " What the British Xorth
America Act intended to effect was to place the right of dealing with colonial copj-right
within the Dominion under the exclusive control of the Parliament of Canada, as distin-
guished from the provincial legislatures, in the same way as it has transferred the power

596 COMMENTARIES ON" THE CONSTITUTION. [Sec. 51 xviii.

to deal with banking, bankruptcy, and insolvency, and other specified subjects, from the
local legislatures, and place them under the exclusive jurisdiction and control of the
Dominion. 1 entirely concur with the learned Vice-Chancellor in the opinion he has
expressed, that under that Act no greater powers were conferred upon the Parliament of
the Dominion to deal with this subject than had been previously enjoyed by the local
Legislatures." (1 Ont. App. 443, Wheeler, Conf. Can. pp. 92-3.)

The Canadian Copyright Act, 1889 (which contained a clause suspending its operation
until proclamation by the Governor-General), made regulations operative in Canada
which differed from those existing under Imperial legislation, and which were calculated
to afTect copyrights registered in England. The English law officers advised the Secretary
of State for the Colonies that in their opinion ' ' the then existing powers of colonial
legislatures to pass local laws on the subject of copyriglit in books were probably limited
to enactments for registration and for the imposition of penalties with a view to the more
effectual prevention of piracy, and to enactments within sub-sec. 4 of sec. 8 of the
International Copyright Act, 1886, with reference to works first produced in the colony."
With respect to the constitutionality of the Canadian Act, the law officers reported that
the powers of legislation conferred on the Dominion Parliament by the British North
America Act, 1867, did not authorize that Parliament to amend or repeal, so far as it
related to Canada, an Imperial Act conferring privileges within Canada, and that, in
their opinion, Her Majesty should disallow the Act. On 25th March, 1890, Lord
Knutsford sent a despatch to Lord Stanley of Preston, the Governor-General of Canada,
in which he expressed his regret that he was unable to authorize the Governor-General
to issue a proclamation to bring the Act into force. (Lefroy, p. 231. Todd, Pari. Gov.
in Col., 2nd ed. p. 182.)

CoPYKiGHT IN THE UNITED STATES. — In the United states, under the power to
secure to authors and inventors the exclusive right to their writings and discoveries.
Congress has created the patent and copyright systems of the Union, and regulates and
(jOntrols them exclusively.

"It can hardly be said that this power is exclusive to tlie Congress as against the
States, in the sense that if the Congress had not occupied the ground the States might
not do so. While the States cannot probably amend or supplement the patent and
copyright laws of the United States, there is no reason for asserting that, in the absence
of any patent and copyright legislation by Congress, the States may not pass laws to
protect the inventions and writings of their own citizens, which will hold until displaced
by the legislation of Congress upon the subject. Of course such protection would be
very inadequate, as it would not reach beyond the boundaries of the particular State."
(Burgess, Political Sci. II. p. 144.)

Congress may provide for copyright of photographs as works of art or science, so far
as they are representations of original intellectual conceptions of the author. (Burrow-
Giles Lithographic Co. v. Sarony, 111 U.S. 53.)

§ 190. " Patents of Inventions."

A patent is a legal privilege granted by the Crown to an individual, and conveying
to him the sole right to make, use, or dispose of some invention of a new and useful
mechanism, appliance, or process in science, art, or industry for a specified period of
time. In England modern patent legislation began with the statute of 21 Jas. 1. c. 3.
This Act declared void all previously enjoyed monopolies, grants, letters-patent, and
licences for the sole buying, selling, or making of goods except in certain cases, and
provided for the protection for a term of fourteen years of letters-patent and grants of
privileges thereafter to be made to the true and first inventor of processes for the working
or making of new manufactures within the realm, which others at the time of making
such letters-patent and grants should not be using. Thus the elements of novelty and
previous non-user by the public became the principal conditions precedent to the
acquisition of such rights and privileges. The law was amended by Acts passed in the
reigns of Queen Anne and William IV. By the Acts of 5 and 6 Will. IV. c. 83, 2 and 3

§ 190.]

POWERS OF THE PARLIAMENT. 597

^'ic. c. 67, 15 and 16 Vic. c 83, amended and re-enacted by the Patent Act, 1883 (46 and 47
Vic. c. 57), the main p^o^^sions of the present patent laws were established. These laws
defined the procedure to be complied with in order to acquire a patent, such as the formal
application, the description and specification of the invention, the provisional protection,
the investigation of the merits and originality of the invention, the decision of disputes,
the duration of the patent, the protection and privileges of the patentee, and the penalties
for the infringement of the right.

A patent granted by the Crown in England extends over the United Kingdom and
the Isle of Man, and certain rights are, under the International Convention, obtainable
in foreign countries. Under the Patents Act, 1883 (46 and 47 Vic. c. 57), sec. 103, as
amended by sec. 6 of the Act of 1885 (48 and 49 Vic. c. 63), the Queen may make
arrangements with foreign Governments for the mutual protection of inventions of their
respective subjects and citizens. Any person who has applied, within any State with
which arrangements have been made thereunder, for protection for any invention, will be
entitled to a patent for his invention in the United Kingdom, pro\-ided he makes
application within seven months after his foreign application. Such an applicant is not
prejudiced in his right to a patent by publication within the realm during the seven
months period. Sec. 104 makes similar provision for inventors who have first applied
for protection in any British possession. A list of countries and colonies with which
arrangements have been made is set out in Edmunds on Patents, 2nd ed. at p. 536 ; the
text of the International Convention will be found in the same book. (See Ency. Laws
of Eng. ix. p. 5"22.^

A patent granted by the Government of a British colony does not confer any legal
right enforceable in other colonies. An inventor must take out a patent in each colony
in which he desires to obtain protection against infringement. As soon, however, as the
Parliament of the Commonwealth passes a general law relating to patents, a patent
gi-anted by its Government Avill be operative throughout the Commonwealth. One
patent will then secure protection where several were previously required.

English Patent Cases. — The Act 21 Jac. 1, c. 3, did not create but controlled the
power of the Cro\*-n in granting to the first inventors the privilege of the sole working
and making of new manufactures. (Caldwell v. Van Vlissengen, 21 L.J. Ch. 97. Dig.
Eng. Case Law, vol. x. p. 687.)

An invention must be both new and useful, and not confined to the knowledge of the
partj' making it, to be the subject of a patent. (Hill v. Thompson, 2 Moore, 424. Dig.
Eng.' Ca. Law, vol. x. p. 689.)

It is not everj- useful discovery that can be made the subject of a patent, but the
words "new manufacture" in 21 Jac. 1, c. 3, will comprehend not only a production,
but the means of producing it. (Ralston v. Smith, 20 C.B. [N.S.] 28; 11 H.L. Gas.
223. Id.)

The discover}' of a more skilful and efiicient mode of working a process already
known and in use is not the proper subject of a patent. (Patterson v. Gaslight Coke Co.
2Ch. D. 812. Id.)

The discoverer of a new principle or new idea as regards any art or manufacture,
who shows a mode of carrving it into practice, as by a machine, may patent the combina-
tion of principle and mode, although the idea or the machine would not alone be the
proper subject of a patent. (Otto v. Linford, 46 L.T. 35 CA. Dig. Eng. Ca. Law.
vol. X. p. 690.)

American Patent Cases. — Whether Congress can by Act decide that a particular
individual is the author or inventor of a certain writing or invention, so as to preclude
judicial inquiry into such fact, quaere. (Evans v. Eaton. 3 Wheat. 454.) It is for
Congieas to say when, for what length of time, and under what circumstances a patent
hall be granted. It has power to pass an Act which operates retrospectively to give a
patent for an invention already in use. (Blanchard r. Sprague, 2 Story, 164 ; Baker,
Annot. Const, p. 48.)

Canadian Patent Cases. — In Tennant r. Union Bank of Canada, 1894, App. Cas.
31, it was held that laws made by the Dominion Parliament on subjects, such as banking
and patents, are paramount, and it would be practically impossible for the Dominion
Parliament to legislate upon either of these subjects without afiecting the property and

698 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-x%'iii.

the civil rights of individuals in the provinces. In Smith v. Goldie, 9 S.C.R. (Can.) 46,
it was held that a patent for a combination of known inventions, the combination being
novel and useful, was valid. It was there also held that to be entitled to a patent iu
Canada, the patentee must be the first inventor in Canada or elsewhere. In the case of
Re Bell Telephone Co. (7 Out. 605) the question was raised whether section 28 of the
Dominion Patent Act, 35 Vic. c. 26, was ultra vires, as creating a court of justice of
civil jurisdiction, infringing sub-sees. 13 and 14, sec. 92, B.N.A. Act. (Wheeler, C.C.
pp. 89-91.)

§ 191. "Designs."

In manufacture, design implies the novel and attractive figures, plans, or outlines
which the workman copies, either from his own drawings or from artistic sketches
supplied, and imprints for the purpose of enrichment into the stuff, silk, and other
materials which constitute the manufactured article. The first English Act relating to
this subject was 27 Geo. III. c. 38, passed in 1787. This was followed subsequently by
the Act 5 and 6 Vic. c 100 (1842), amended by 21 and 22 Vic. c. 70 (1858). By the Act
of 1842 all articles of manufacture, and substances on which designs are executed, are
divided into thirteen classes ; for some of which the copyright of the design was fixed at
three years, for others nine montlis, and for the others twelve months.

The Patents Designs and Trade Marks Act of 1883 (46 and 47 Vic. c. 57), amended
and consolidated the English statute law relating to designs. That Act has been
slightly altereil by the Patents Designs and Trade Marks Act of 1886 (49 and 50 Vic. c.
37), and 1888 (51 and 52 Vic. c 50), and by the Designs Rules of 1890 and 1891. The
Consolidated Act of 1883 defines the term design as any design applicable to any article
of manufacture, or to any substance, artificial or natural, or partly artificial and partly
natural, whether the design is applicable for the pattern, or for the shape or configura-
tion, or for the ornament thereof, or for any two or more of such purposes, and by
whatever means it is applicable, whether of printing, painting, embroidering, weaving,
sewing, modelling, casting, embossing, engraving, staining, or any other means whatever,
manual, mechanical or chemical, separate or combined, not being a design for a sculpture
or other things within the protection of the Sculpture Copyright Act of the year 1814.
According to this definition there are only a few special classes of designs within the
protection of the Act, viz. : those applicable to the pattern, shape, or ornamentation of
manufactured articles. (Per Lord Herschell in Hecla Foundry Co. v. Walker [1889] 14
App. Ca. 550 ; and per Lindle}^ L.J , in re Clarke's Design [1896] 2 Ch. at p. 4.S.)

§ 192. "Trade Marks."

A trade mark is some name, symbol, or device, consisting in general of a picture,
label, word or words, which is applied or attached to a trader's goods so as to distinguish
them from the similar goods of other traders, and to identify them as his goods, in the
business in which they are produced or put forward for sale. (Leather Cloth Co. v.
American Leather Cloth Co., 11 H.L. Cas. 523 ; Richards v. Butcher, 1891, 2 Ch. at pp.
532 and 543, per Kay, J., and Lord Esher, M.R.)

" Any symbol may become a trade mark if it is capable of distinctive user in
accordance with the definition, but only symbols which consist of or contain at least one
of the essential particulars enumerated in the Acts, 1883, s. 64, as amended by 1888,
s. 10, are capable of registration. The essence of a trade mark is that it distinguishes
the oAvner's goods, and the essence of an infringement (where the essential particulars
are not bodily appropriated) is that the use of the mark upon tlie defendant's goods is
calculated to lead purchasers to buy them as being the plaintifi's goods. A trade mark
must therefore be a distinctive symbol. A word or device which is common to the trade
or is in general use, mere descriptive matter, or the name of the goods themselves, are
the principal examples of marks which are not distinctive." (Encyc. of the Laws of
Eng., xii. p. 223.)

§§ 192-193.] POWERS OF THE PARLIAMENT. 599

Prior to trade mark legislation, property in a trade mark could only be acquired by
actual user of the mark for such a length of time as to be evidence of appropriation of the
badge distinguishing the owner's goods. Under the English Acts, registration can be
procured of any trade mark, and registration is cNndence of the proprietors right to its
exclusive use. A right to a trade mark can now be obtained by the i-egistration of a new
and unused mark, provided that the applicant has a real intention to use the mark upon
the description of goods for which it is registered. (Hudson's Trade Marks, 1886, 32
Ch.D. 311.)

By the International Convention of 1883, the signatory' Powers agreed to reciprocally
admit to registration and protection trade marks registered in their several countries.
This has not, so far, been fullv carried out bv English law. (Califomian Fig SvrupCo.'s
Trade Mark, 1888, 40 Ch. D. 62«) ; Carter Medicine Co.'s Trade Mark, 1892, 3"Ch. 472.)
But foreigners may register their trade marks in England, giving an address Avithin the
Kingdom for service on the same terms as English subjects. In the case of a signatory*
Power, if any of its subjects who has registered a mark at home, which is capable of
registration in England, applies for a registration in England within four months of
his application to register at home, he is entitled in priority to other applicants, and is
not prejudiced bj' the use of the mark by others during the period. (Germany is the
only important non-signatory Power. Section 8 of the Act of 1888 is applicable to the
principal Colonies. Under the Convention of Madrid, 1891, a trade mark may be
registered as the result of a single application in the countries of the signatory Powers.
Oreat Britain has not acceded to this Convention. (Encyc. of the Laws of Eng., xii.
p. 2.S4.)

5 1 . (xix ) Naturalization^** and aliens^*^ :

Historical Note. — The Constitution of the United States empowers Congress "to
establish a uniform rule of natui-alization throughout the United States." (Art. L
sec. viii. sub-sec. 4.) " Naturalization and aliens" is specified in sec. 91, sub-sec. 25, of
the British North America Act. " Naturalization of aliens " was a subject which might
be referred to the Federal Council under the Act of 1885. The sub-clause was intro-
duced in its present form in 1891, and was adopted in 1897-8 without debate.

§ 193. "Aliens."

In English law an alien may be variously defined as a person who owes allegiance to
a foreign State, who is bom out of the jurisdiction of the Queen, or who is not a British
subject. The rule of the common law is that every person bom out of the British
Dominions is an alien, and that every person born within British Dominions is a British
subject. This is known as the jtis soli or the territorial test of nationality, which is
contrasted with theyws sanguinin or the parentage test of nationality. There are several
exceptions to the territorial rule ; (1) legitimate children bom out of the British
Dominions, whose fathers, or grandfathers on their fathers' side, were natural-bom
subjects, not in the service of an enemy at the time of such children's birth, are entitled
to the rights of natural-born subjects (Imperial Acts 4 Geo. II. c. 21, sees. 1, 2; 13
Geo. III. c. 21) ; (2) children born on board British ships on the high seas are natural-
bom subjects ; ^3) legitimate childi-en of an alien enemy, bom in a part of the British
Dominions which at the time of their birth is in hostile occupation, are not British
subjects. (See Cabin's case, 7 Coke Rep. 4 ; Westlake, Priv. Intemat. Law, 3rd ed.
p. .323. Dicey, Conflict of Laws, p. 176.)

Although aliens resident in a British country owe no local allegiance to the Crown,
they are bound equally with British subjects to obey the laws of the country. Mr. Hall
considers that an alien, " in return for the protection which he receives, and the
opportunities of profit or pleasure which he enjoys, is liable to a certain extent, at any
rate, in moments of emergency, to contribute by his personal service to the maintenance
of order in the State from which he is deriving advantage, and under some circumstances

600 COMMENTARIES ON THE CONSTITUTION. [Sec. 51— xix.

it may be even permissible to require him to help in protecting it against external
dangers." (Hall's Foreign Jurisdiction, p. 171.) "There is no rule or principle ot
international law which prohibits the government of any country from requiring aliens,
resident within its territories, to serve in the militia or police of the country, or to
contribute to the support of such establishments." {Id. p. 172.)

Under ancient as well as modem jurisprudence, aliens, resident in a country of which
thej^ were neither citizens nor subjects, were for a long time regarded with jealousy and
under serious disabilities. In ancient Athens foreigners were not allowed to dispose of
their property by will ; at their death it was confiscated to the State. In early Rome
foreigners were similarly disqualified, but under the Empire they were allowed to inherit
and devise property by will. By the law of France, until the beginning of this century,
the Government appropriated the property of foreigners dying in that country and
leaving no heirs who were natives. In England, until enabling legislation during the
present reign, aliens were subject to many disqualifications, some of which still remain.
An alien could not, and still cannot, own a British ship. An alien could not own real
estate within the realm, and hence it was held that a lease or an agreement for a lease
of land to an alien artificer was void by 32 Henry VIII. c. 16, sec. 13. (Lapierre v.
Mcintosh, 8 L.J. Q.B. 112.) An alien woman married to an Englishman was not entitled
to dower. (Wall's Case, 6 Moore P.O. 216.) A Court of Equity would enforce, for the
benefit of the Crown, a trust of real estate created in favour of an alien. (Barrow v.
Wadkin, 24 Beav. 1.) An alien friend had no legal right enforceable by action to enter
British territory, and this disability still remains. (Musgrove v. Chung Toy [1891],
App. Cas. 272.)

On the other hand, by the terms of the Copyright Act, 5 and 6 Vic. c. 45, an alien
friend who, during his temporary residence in a British colon}', publishes in the United
Kingdom a book of which he is the author, is entitled to the benefit of the English
Copyright. (Routledge v. Low, L.R. 3 H.L. 100.) So also, by the terms of the English
law of Trade Marks, a foreign manufacturer has a remedy by suit in the United Kingdom
for an injunction and account of profits against a manufacturer who has committed a
fraud upon him by using his trade mark for the purpose of inducing the public to believe
that the goods so marked are manufactured by the foreigner. ^Collins Co. v. Brown,
3 Jur. [N. S. ] 929. ) An alien can similarly sue to restrain the fraudulent appropriation
of his trade mark, although the goods to which such trade mark is affixed are not usually
sold b^'him in the Kingdom. (Collins Co. v. Reeves, 4 Jur. [N.S.] 865.) An alien friend,
though resident abroad, is entitled to sue in England for a libel published there concerning
him. iPisani v. Lawson, 6 Bing. N.C. 90.)

The Act 7 and 8 Vic. c. 66 (1844) first allowed aliens to take and hold every species
of personal property — but not real property — as fully and effectually as if they were
natural-born subjects, and enacted also that lands or buildings for the purpose of
residence, or for the carrying on of any trade, business, or manufacture, might be taken
and held by aliens for any term of years not exceeding twenty-one.

The Naturalization Act of 1870 (33 and 34 Vic. c. 14) greatly enlarged the privileges
of aliens. Under that Act real and personal property of every description ma}' l)e
acquired, held, and disposed of by an alien, in the same manner in all respects as by a
natural-bom British subject ; and a title to real and personal property of every description
may be derived through an alien, in the same manner as if he were a natural-bom British
subject. No right is thereby conferred on an alien to hold real property situated out of
the United Kingdom. The principal provisions of these Acts have been generally
adopted in the colonies by local legislation passed in the exercise of power conferred by
the Act 33 and 34 Vic. c. 14, sec, 16.

§ 194.] POWERS OF THE PARLIAMENT. 601

§ 194. " Naturalization."

Naturalization is the process, defined by law, by which an alien renounces his
original allegiance and is converted into a subject or citizen, entitled to all the rights
and privileges of natui-al-bom subjects and citizens in the country in which he domiciled.
Formerly the only motle of obtaining naturalization was by a special Act of Parliament
passed for each individual seeking to be naturalized ; but by the Act 7 and 8 Vict. c. 66,
the British Parliament provided a general procedure by which approved aliens could
acquire the status of natural-bom subjects of the Queen. It was enacted that the Home
Secretary might, if he thought fit, grant a certificate of naturalization to any alien
applying for it, on receiving such evidence (with regard to his intention to remain in the
countr}-, his trade, &c.) as might seem necessary. This certificate conveyed to the alien
all the rights and privileges of natural-born British subjects, except the right to become
a member of Parliament or a Privj' Councillor. This Act was amended and enlarged by
the Naturalization Act, 1870, (33 and 34 Vic. c. 14), which declared that an alien
resident in the United Kingdom for a term of not less than five \ears, or who has been
in the service of the Crown for not less than five years and intends to reside in the
Kingdom or to serve the British Crown, may applj- to the Home Secretary for a
certificate of naturalization, and on giving evidence of particulars may obtain it. Ha\'ing
obtained this certificate, he is, in the United Kingdom, entitled to all the political and
other rights, powers and privileges, and subject to all the obligations of a natural-
born British subject. When within the limits of the foreign State of which he was
formerly a subject, he is not deemed a British subject, unless he has ceased to be a
subject of that State. Section 16 of this Act conferred upon colonial legislatures the
power of legislation in respect to the naturalization of aliens, and in the exercise of this
power the English naturalization laws, with minor variations, have been generally
adopted in the colonies. Lettera of naturalization granted by the Government of a
colony are, however, operative only within that colony.

" No question of naturalization arises in connection with the emigration of British
subjects to British colonies. Settling therein makes no more change in this respect than
a removal from York, Glasgow, Swansea, or Dublin, to London, and a new arrival has
all the privileges of a fellow-subject. This is very important when compared with the
position of a person who conieraplates emigration from the United Kingdom to the
United States. For example : — It is required that everyone from the British Islands
who desires to become an American citizen shall take two oaths, one of intention and
one of facts, the latter after five years' residence. The effect of these oaths is pointedly
and specifically to renounce allegiance to the Queen, to give up one's British birthright,
and, in the event of war, to become an enemy to the land of one's birth. In some of the
States — the great State of New York, for instance — a British subject cannot hold real
estate without taking such oaths, and cannot in any of the States exercise any of the
political rights of American citizens without so doing." (Canadian Official Hand-book,
p 7 ; Wheeler, C.C. p. 770.)

NATUR-i^LiZ-iTiox IX THE UxiTED STATES. — " The power to establish a single statute
of naturalization for the whole United States is, of course, an exclusive power of the
Congress. The States could not do that even though the Congress should not regulate
the subject at all. It is, indeed, conceivable that every State might pass exactly the
same statute of naturalization, and that the courts of every State might give to the
statutes of the respective States exacth' the same interpretation, and an uniform rule
be attained in this manner. It is not, however, at all likely that they would. More-
over, the State naturalization could not give the full rights and privileges of citizenship.
It could only give sueh as pertain to the indi^"idual as a resident of the particular State.
The purposes of naturalization, \-iz., to gain the full rights and pri\'ileges of citizenship,
could not thus be attained." (Burgess, Political Sci. II. p. 144.)

The .American States individually have still a concurrent authority as to naturali-
zation, but they cannot exercise it so as to contravene the rules established by Congress.
The true reason for empowering Congress to establish a uniform rule was to guartl
against a too narrow — not against a too liberal — mode of granting rights of citizenship.
A State caimot exclude citizens who have been adoptetl by the United States ; but it can
adopt citizens upon easier terms than those impose<l bv Congress. (Collet v. CoUet,
2 Dall. -294. Baker, Annot. Const, p. 43.)

-602 COMMENTARIES ON THE CONSTITUTION. [Sec.5i-xix.

" 1 am not aware of aivf instance in Avhich the Courts have spoken of the grant of
power to the general Government as excluding all State power over the subject, unless
they were deciding a case where the power had been exercised by Congress and a State
law came in conflict with it. In cases of this kind the power of Congress undoubtedly
excludes and displaces that of the State, because whenever there is a collision between
them the law of Congress is supreme ; and it is in this sense only, in my judgment, that
it has been spoken of as exclusive in the opinions of the court to which I have referred."
(Per Taney, C.J., License Cases, 5 How. o8o.)

'*~No State can make a foreigner a citizen of the United States. It may put a
foreigner upon a footing with its own citizens as to all rights and privileges enjoj'ed by
them within its dominion and under its laws. But that will not make him a citizen of
the United States nor entitle him to sue in its courts, nor to any of the privileges and
immunities of a citizen in another State. (Dred Scott v. Sandford, 19 How. 393. Baker,
Annot. Const, p. 43.)

A State cannot make a subject of a foreign government a citizen of the United
States. Citizenship and the right to vote are neither identical nor inseparable. (Lanz
V. Randalls, 4 Dill. 425. Id. )

An alien who has been duly naturalized under the federal law becomes thereby a
citizen of the United States, and is a citizen of any State of the Union in which he may
reside. (Gassies v. Ballon, 6 Pet. 761. Id.)

Under the power to " prescribe a uniform rule of naturalization," Congress has no
power to regulate or prescribe the capacities of a naturalized citizen. A naturalized
citizen is on the footing of a native citizen, except so far as the Constitution itself distin-
guishes him. (Osborn v. Bank of United States, 9 Wheat. 827. )

Canadian Cases on Aliens. — " The point decided in Low v. Routledge (1865, L.R.
1 Ch. 42), is that a colonial legislature cannot afi"ect an alien's rights beyond the limits of
the colony. There, the plaintitf, an alien, temporarily resident in Montreal, claimed to
be entitled to copyright under the Imperial Copyright Act, 5-6 Vic. c. 45, in respect to a
book she was publishing in England, and it was unsuccessfully contended that she could
not be so entitled because by a Canadian statute an alien coming into Canada for the
purpose of publishing a work, as the plaintiff had done, and publishing his book there,
would not be entitled to copyright in the work so published, and because an alien coming
into Canada could acquire only such rights as were given by the law of Canada. Sir G.
J. Turner, L.J., however, delivering the judgment of the Court, says : - " This argument
on the part of the defendants is, in truth, founded on a confusion between the rights of
an alien as a subject of a colony, and his rights as a subject of the Crown. Every alien
•coming into a British Colony becomes temporarily a subject of the Crown— bound by,
sxibject to, and entitled to the benefit of the laws which affect all British suV)jects. He
has obligations and rights both within and beyond the colony into which he comes. As
to his rights within the colony, he may well be bound by its laws ; but as to his rights
beyond the colony, he cannot be affected by these laws ; for the laws of a colony cannot
extend beyond its territorial limits." (Lefroy, Leg. Pow. in Canada, p. 328.)

"This expression, 'subject of the colony,' is significant and important. In an
article in 31 Can. L.J. 7, entitled ' Can a Colonial legislature affix a criminal character
to acts committed beyond its territorial limits ?' the writer says that ' there is no such
thing as a Canadian, Australian or Indian subject ' ; and in an international sense no
doubt this is so ; but the above dicta, and other authorities . . . show that in con-
nection with the matters under discussion there is a sense in which it is proper to speak
of a man as a subject of a particular colony, and that legal distinctions hinge upon his

Eosition as such." (See the dictum of Boyd, C, in Regina v. Brierly, 14 Ont. Rep. 533 ;
refroy. Leg. Pow. in Can., p. 329.)

The Dominion Parliament has exclusive jurisdiction over naturalization and aliens.
The Ontario legislature passed an Act, 51 Vic. c. 70, providing that the railway company
therein incorporated might become a party to promissory notes and bills of exchange,
and how such notes and bills might be made, accepted, or endorsed so as to be binding
on the company. Section 12 of the Act provided tliat aliens as well as British subjects,
whether resident in the province or elsewhere, might be shareholders in the company,
and that all such shareholders should be entitled to vote on their shares and be eligible
as directors. The Canadian Minister of Justice objected to this section as infringing on
the exclusive Dominion power to make laAVs in respect to aliens. In reply, Mr. Mowat,
the Provincial Attorney-()ieneral, contended that this power was not intended to give and
did not give the Dominion Parliament jurisdiction in respect to such matters as that in
-question, which he submitted related not to naturalization and aliens within the meaning

4 194.] POWERS OF THE PARLIAMENT. 603

■of the British North America Act, but to property and civil rights. In support of this
view he cited Todd's Parliamentary Govemmeot in the Colonies (2nd ed., p. 299).

A British Columbia Act of 1890, incoi-porating a certain companj-, forbade under
severe penalties the emplojTuent of Chinese. The Canadian Minister of Justice objected
to this pro^-ision, which he said " seems open to question on the ground that it is for the
Parliament of Canada to legislate respecting aliens and therefore to prescribe their
rights and disabilities."

In 1890 the legislature of British Columbia passed the Coal ilines Regulation Act,
sec. 4 of which provided that no boy under the age of 12 years, no woman or girl, and
no Chinaman, should be employed underground in any mine to which the Act applied.
The Union Colliery Company of British Columbia employed Chinamen in its mines in
defiance of this prohibition. In 1898, Mr. Bryden, a shareholder, brought a suit against
the Companj' in the Supreme Court of the Province, claiming an injunction restraining
the Company from emploj-ing Chinamen. The Company pleadetl that the Act, so far as
it proliibited the emplojTnent of Chinamen, was void as being ultra vires of the legislature
of the Province. Mr. Justice Drake upheld the validity of the Act and granted the
injimction. The Full Court of the Province sustained his decision, holding that the Act
came within the power of the Pro\'ince to legislate concerning " property and civil rights."
The Company appealed to the Privj- Council. In support of the appeal it was argued that
the Parliament of Canada had, under the British North America Act, sec. 91 (25),
exclusive authority to legislate concerning " naturalization" and aliens."

The Pri\-y Coxmcil, per Lord Watson, held that the Provincial Act was ultra vires,
and reversed the decision of the Provincial Courts. Ever}' alien when naturalized in
Canada became, ipso facto, a Canadian subject of the Queen, and his children were not
aliens requiring to be naturalized, but natural-bom Canadians. It could hardly have
been intended to give the Dominion Parliament the exclusive right to legislate for the
latter class of persons resident in Canada, but section 91 (25) might possibly be construed
as conferring that power in the case of naturalized aliens after naturalization. The
subject of " naturalization " seemed prima facie to include the power of enacting what
should be the consequences of naturalization, or, in other words, what should be the
rights and privileges pertaining to residents in Canada after they had been naturalized.
It seemed clear that the expression "aliens" in that section referred to, and at least
included, all aliens who had not yet been naturalized, and the words " no Cliinaman" in
the Provincial Act certainly included every adult Chinaman who had not been
naturalized. The leading feature of the prohibition in the Provincial Act was that it
could have no application except to Chinamen who were aliens or naturalized subjects,
and that it established no rule or regvdation, except that those aliens or naturalized
subjects should not work in underground coal mines within the Pro%'ince. Their
Lordships saw no reason- to doubt that, by virtue of section 91 {'25), the Legislature of
the Dominion was invested with exclusive authority in all matters which directly
concerned the rights, privileges, and disabilities of the class of Chinamen who were
resident in the Provinces of Canada. They were also of opinion that the whole pith and
substance of sec. 4 of the Provincial Act, in so far as objected to by appellant company,
consisted in establishing a statutory- prohibition which affected aliens or naturalized
subjects, and therefore trenched upon the exclusive authority of the Parliament of
Canada. (Per Lord Watson, in The Union Colliery Company of British Columbia, Ltd.,
V. Bryden [1899], App. Ca. 580.)

Under the Constitution of the Commonwealth, sec. 51 — xix., the Federal Parliament
will be able to prohibit Chinamen, whether naturalized or not, from working in mines, or
to permit them to work in mines. In the absence of Federal legislation State laws
relating to such subjects would, under sec. 108, prevail.

Ai.iEXS NAxrR-XLizED BY CoLOXL\L Laws. — "The continued inconveniences and
disabilities to which German emigi-ants to Canada are exposed by reason of the partial
benefits afforded to them by naturalization under the colonial law, which leaves them

604 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xx

still liable to be claimed as German subjects when travelling abroad or on a return to
their native country, induced the Canadian Privy Oouncil to request the Governor-
General to write to the Secretary of State for the Colonies and represent this grievance.
. . Accordingly, on April 21, 1873, the Canadian House of Commons passed an address
to the Queen, praying that, pursuant to the provisions of the Imperial Naturalization
Act of 1870, Her Majesty would be pleased to negotiate naturalization treaties with the
(German and other foreign States, under which legally naturalized foreigners in Canada
may no longer be subject to the disabilities of a divided allegiance, but, on formally
renouncing their native allegiance, may become entitled to all the privileges of native-
born British subjects. A despatch, in reply to this address, dated September 3, 1873,
was transmitted by the Governor-General to the House of Commons, on Maj' 6, 1874.
It inclosed a memorandum from Her Majest3''s Secretary of State for Foreign Affairs,
which stated that the Imperial government were prepared to place aliens naturalized in
any British colony, out of Europe, on the same footing, so far as passports and protec-
tion in foreign countries are concerned, as aliens naturalized in England under the Act
of 1870. But it suggested that a compliance with the request for the negotiation of
naturalization treaties would prove less advantageous to aliens naturalized in the colonies
than the existing practice— inasmuch as no treaties could be negotiated, except upon the
basis of a five years' residence in the colony of the alien who desired to be allowed to
change his allegiance. The only way in which the objections urged could be satisfac-
torily overcome would be by an extension of Imperial naturalization to the colonies, the
expediency of which is under the consideration of Her Majesty's government. . .
And in March, 1881, the Canadian Commons were informed that negotiations had been
entered into between the Imperial and the German governments, with a view, by treaty,
to enable German settlers in Canada to obtain complete naturalization." (Todd's Pari.
Gov. in Col. 2nd ed. pp. 296-9.)

" Legislation with regard to aliens is entrusted to the Dominion Parliament. The
Manitoba Assembly passed an Act dealing with the holding of land ; and declared that
the existing disqualifications against aliens debarred them from serving as jurors. The
Minister of Justice, 21 February, 1874, following the ruling of the Chief Justice, under
the English laws in force in Manitoba, recommended that the Act be sanctioned. (Prov.
Leg. 1887.) If the Provinces attempt to effect the naturalization of a person who is a
citizen of a foreign State, this would be objected to, as this is one of the subjects left
exclusively to the Dominion Parliament, and Acts have been passed accordingly."
(Wheeler, C.C, p. 101.)

51. (xx.) Foreio^n corporations'^", and trading'^^ or financial
corporations^^' formed'''^ within the limits of the Common-
wealth'^^ :

HiSTORiCAi^ Note. — " Status of corporations and joint stock companies in other
colonies than that in which they have been constituted " was a subject which might be
referred to the Federal Council under the Act of 1885.

In the Bill of 1891 the sub-clause was worded, " The status in the Commonwealth of
foreign corporations, and of corporations formed in any State- or part of the Common-
wealth." In Committee Mr. Munro and Mr. Bray suggested that there should be power
to prescribe a uniform law for the incorporation of all trading corporations ; but Sir
Sanmel Griffith thought it unnecessary. (Conv. Deb. Syd. , 1891, pp. 685-6.)

At Adelaide the sub-clause was drawn as follows : — " Foreign corporations and trading
corporations formed in any State or part of the Commonwealth." In Committee the
words " or financial" were added. (Conv. Deb., Adel., pp 793-4.) At Melbourne, after
the fourth report, the words "within the limits of the Commonw^ealth " were substituted
for the words " in any State or part of the Commonwealth."

§ 195.. ''Foreign Corporations."

A corporation has been already defined ; Note, § 182, nupra, "Incorporation of
Banks." A corporation, according to tlie law of England, cannot be create<l except by
royal charter, letters-patent, or Act of Parliament. Once duly constituted it is an
artificial person, having the incidents of unity and perpetuity, capable of suing and
being sued, holding property, performing acts, and having a domicile. Its domicile is

4 195.] POWERS OF THE PARLIA.MENT. 605

its principal place of business, where the administrative work of the corporation is
carried on. (Dicey, Conflict of Laws, 154. )

Foreign corporations, chartered for lawful purposes, have the right to earrj- on
business within the British Dominions, subject to the conditions and requirements of
local laws ; this has been recognized by the comity of nations, as well as by conventions
concluded between Great Britain and other countries. By the Anglo-French and Anglo-
Belgian treaties of 1862, and by the Anglo-Spanish treaty of 1883, companies formed in
one of the joint contracting countries, in accordance with laws in force therein, are
entitled to exercise " all their rights " in the dominions of the other. Similar conventions
have been entered into by Great Britain with Germany, Italy, Greece, and other nations,
mutually securing to commercial and industrial companies the exercise of their rights
throughout the possessions of the high contracting parties.

" The right of foreign and colonial corporations to carry on business in England,
"without any authority to that eflfect from Parliament or Government, has now passed
unquestioned for so long that it may be considered to be established ; and it is a very
exceptional instance of liberality." (Westlake, Priv. Intemat. Law, p. 337.)

The term " foreign," in the phrase now under discussion, is vride enough to cover
not only corporations established by the laws of independent foreign States, but also
corporations established b}' the law of Great Britain and by the law of every self-governing
communit}' within the British Empire. Li short, " foreign " includes every corporation
established beyond the limits of the Commonwealth.

A foreign company carn.-ing on business in any part of the British Dominions, through
A branch office situated there, is liable to be sued locally in the same manner as a local
corporation. Thus, an American compam*, incorporated by American law in the United
States, had a place of business in England, where it, de facto, carried on business,
Although its manufactory, and also its principal place of business, where the meetings of
its directors and shareholders were held, were in America. The plaintiff claimed a sum
of money as being due from the corporation to him as the balance of commission on the
sale of goods. He commenced an action against the corporation and its agent in
England, including both in the \i-rit, and sers-ed two copies upon the agent, one for him-
self and the other for the corporation. It was held that the court would not, upon the
^ound that a foreign corporation cannot be sued in England, prevent the plaintiff from
pi-oceeding in the action ; and also that, as the corporation had a place of business in
England and traded there, it must be treated as resident there, and that the seni-ice upon
its agent was sufficient. (Newby v. Van Oppen, L.R. 7 Q.B. 293 ; and it was similarly
iield in Haggiu r. Comptoir d'Escompte de Paris, 23 Q.B.D. 519.)

The right of British and colonial courts to order the winding-up of companies not
-domiciled within their respective jurisdictions has been considered in a number of cases
"which have arisen in the United Kingdom, India, Australia, and Xew Zealand. In a
New Zealand case it was held that the Court of Chancerj- in England has jurisdiction
under s. 199 of the Companies' Act, 1862 (25 and 26 Vic. e. 89), to wind up an unregistered
joint-stock company, formed, and having its principal place of business in Xew Zealand,
but ha\ing a branch office, agent, assets, and liabilities in England. The pendency of a
foreign liquidation does not affect the jurisdiction of the court to make a winding-up
order in respect of the company under such liquidation, although the court will, as a
matter of international comity, have regard to the order of the foreign court. It being
-alleged that proceedings to wind up the company were pending in New Zealand, the
Court, in order to secure the English assets until proceetlings should be taken by the
New Zealand liquidators to make them available for the English creditors pari pas9u
"with those in New Zealand, sanctioned the acceptance of an undertaking by the solicitor
for the English agent of the company, that the English assets should remain in fUatu qtio
until the further order of the Court. (Re Commercial Bank of India, L.R. 6 Eq. 517 ;
followed in Rt Matheson Bros. Limited, 27 Ch. D. 225 ; Digest of Ehiglish Case Law,
111, 1674,)

606 COMMENTARIES ON THE CONSTITUTION. [See. 61-xx.

A banking company carrying on business in South Australia had a branoli
London, but was not registered in England. The company had English creditors
and assets in England. Two petitions were presented in England to wind up the
company, which had stopped payment, and on the hearing of the petitions an order was
made appointing a provisional liquidator, and the further hearing was ordered to stand
over for a time. The powers of the provisional liquidator were limited to the taking
possession of, collecting and protecting the assets of the company in England. When
the petitions came on again to be heard it appeared that a petition to wind up the
company had been meanwhile presented in Australia, and a provisional li(|U)dator had
been appointed there, but it was not proved that a winding-up order had been made.
It was held that there was jurisdiction, at the time when the petitions were presented,
to make an order to wind up the company, and that the jurisdiction could not be affected
by subsequent proceedings in Australia. A winding-up order was accordingly made, the
order appointing the provisional liquidator being continued, with the same restrictions-
on the powers, the judge expressing an opinion that the winding-up in that court would
be ancillarjf to a winding-up in Australia, and that if the circumstances remained the
same, tlie powers of the official liquidator, when appointed, ought to be restricted in the
same way. (Re Commercial Bank of South Australia, 33 Ch. D. 174.)

In the case of the Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. (Can.) 312, the
question was as to the validitj^ of proceedings under the Dominion statute for the sole and
principal winding-up of a joint stock company incorporated in England in 1874, under
the Imperial Joint Stock Companies' Act, and never incorporated in Canada, but with
its chief place of business in Nova Scotia, where it owned and operated extensive iron
mines and works, constituting almost its whole assets, while it owned no real estate, but
occupied an office in Great Britain. (Lefroy, Leg. Pow. in Canada, p. 629.) The
Supreme Court held that an order could not be made under the Dominion law for
the winding-up of the Company. In the same case, Henry, J., said: — "If the
provisions of a Dominion statute, as in this case, contravene an English statute
regulating an English incorporated company, such provisions would be ultra vires. . .
It is possible that a company chartered in the United States or other foreign country
doing business here might be wound up under the Dominion Act, if such could be done
without interfering with the terms of the constituting articles, but I see serious
difficulties in the way, even in such a case."

The extent to which federal control may be exercised over foreign corporations,
including those formed under Imperial law, may be thus summarized from the English
and Canadian cases. They will be liable to federal taxation ; they may be required to
give security for the performance of their contracts ; their property and assets within the
Commonwealth may be protected and regulated, so as to secure the rights of creditors,
and particularly the rights of citizens and residents of the CommonAvealth ; they Avill not
and cannot be wound up or dissolved under Federal law. But should thej' not be able
to pay their debts, their assets may be seized and placed in the hands of a Federal
liquidator, charged with the duty to carry on a local liquidation ancillary to any
principal winding-up that may be instituted in the country of their domicile. (The
Merchants' Bank of Halifax v. Gillespie, 10 S.C.R. [Can.] 312 ; Allen v. Hanson, 16
Quebec L.R. 79 ; He Briton Medical Life Association, 12 Ont. Rep. 441.)

§ 196. " Trading . . Corporations."

A trading corporation is one formed for the purpose of carrying on trade. To trade,
as we have seen (Note, § 162, supra), means to buy and sell ; to be engaged in the
exchange, barter, traffic, bargain, or sale of goods, wares, and merchandize, or to carry
on commerce as a business. The Federal Parliament may legislate concerning trading
corporations formed within the limits of the Commonwealth. Such corporations may Ije
both created and wound up under the provisions of Federal law ; whilst foreign
corporations cannot be either created or wound up by Federal law, though their ))iisine8S
operations and property can be regulated and affected.

§§ 197 199.] POWERS OF THE PARLIAMENT. 607

§ 197. " Financial Corporations."

Sub-section 13 enables the Parliament to make laws with respect to "Banking and
the incorporation of Banks." This sub-section is intended to give the Parliament power
to legislate concerning aU "financial institutions" formed within the limits of the
CommonMealth. There are financial institutions which are not banks. Among these
may be mentioned companies which receive deposits of money for investment and make
advances on the security' of land, such as land-mortgage companies and building
societies. (Con. Deb., Adel., 1897, p. 793.)

^ 198. " Formed."

In the expression "trading or financial corporations formed within the limits of the
Commonwealth," the words "formed within," &c., apparently include corporations
formed under the authority of State laws, whether before or after the establishment of
the Commonwealth. " Formed " is certainly capable of meaning " formed under State
laws." It would have been imnecessary to declare that the Parliament should have
power to make laws controlling corporations " formed" by its own authority. There is
no express power vested in the Parliament to incorporate trading or financial companies
(sec. 51 — xiii.). Whether such companies could be created under the trade and commerce
section is not clear. It would therefore seem that this pro>'ision refers to c-ompanies
created under State laws. Such bodies, once launched, will come within the control of
Federal legislation. Under this power it would probably be competent for Parliament
to convert a corporation created by State authority' into a Federal corporation ; to enlarge
the scope of its operations and business ; to confer on a local corporation certain powers
which would be beyond the jurisdiction of the States Govenunents to grant. (Todd's
Pari. Gov. in Col., 2nd ed. 437.)

" In Jime, 1881, the Quebec Court of Queen's Bench, on an appeal from the decision
of an inferior court, declared that the Dominion Parliament had exceeded its powers in
the incorporation, by Act 43 Vic. c. 67, of the Bell Telephone Companj'. This company
had been authorized to establish telephone lines in any part of Canada, to cross rivers,
boundary lines, &c. But the company, in commencing a local business in Quebec, did so
for purely local traffic, ha\ing no pretension to service of a dominion character. Their
undertaking did not involve the connection of service with two or more Provinces, or the
need even to cross navigable rivers ; neitlier had Parliament declared the company to be
' for the general advantage of Canada, or of two or more Provinces.' In fact, the powers
claimed to have been conferred were bej'ond the jurisdiction of the Dominion Parliament
to grant, and should have been obtained in the particular instance from the Quebec
legislature. The company were therefore adjudged to have been guilty of a nuisance, in
erecting their poles in the city of Quebec without lawful authority. But in the same
month (.June, 1881), upon application to the Quebec legislature, then in session, an Act
was passed ' to confer certain powers on the Bell Telephone Company of Canada,' which
recognized this compan}', and gave it the necessary corporate powers for provincial work,
saving only actions pending in the courts. Similar Acts were passed by the New
Brvmswick, the Nova Scotia, and the Ontario legislatures, in 1882. And in the same
year, the Dominion Parliament amended their Act of incorporation, and furthermore
declared the works in question to be ' for the general advantage of Canada.'" (Todd's
Pari. Gov. in Col. 2nd ed. p. 5.34. )

§ 199. " Within the Limits of the Commonwealth."

This is a notable expression, atfirmative of the territoriality of the Commonwealth,
and recognizing the principle that, as a general rule, the laws of a sovereign State or of
a semi-sovereign community are intended to be operative and enforceable only within its
territorial limits. The words, " formed within the limits of the Commonwealth," are,
apparently, words of description rather than words of limitation, seeing that even without
any express restriction the laws of the Commonwealth could onh- operate within and
throughout the Commonwealth. Only express words would justify any interpretation
giving an extra-territorial efiect. One instance of such express words is found in Clause V. ,

608 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxi.

which enacts that the laws of the Commonwealth shall be " in force an all British ships "
whose first port of clearance and whose port of destination are within the Commonwealth.
Another instance is found in section 51 — x., "Fisheries in Australian waters beyond
territorial limits."

51. (xxi.) Marriage^*^ :

Historical Note. — "Marriage and divorce" is specified in the British North
America Act, sec. 91, sub-sec. 26. "Recognition in other colonies of any marriage or
divorce duly solemnized or decreed in any colony " was a subject which might be
referred to the Federal Council under the Act of 1885. In the Bill of 1891, and also in
the Adelaide draft of 1897, "Marriage and divorce" was one of the legislative powers.

At the Sydney session, a suggestion by the House of Assembly of Tasmania was
submitted, to omit the sub-clause and substitute "The status, in other States of the
Commonwealth, ot persons married or divorced in any State." Mr. Glynn said that
there were strong objections in South Australia to the prosptjot of the grounds of
divorce in that colony being extended as they had been in New South Wales and
Victoria. The sense of the desirability of uniform laws of marriage and divorce
prevailed, however, and the sub-clause was agreed to. (Conv. Deb., Syd., 1897,
pp. 1077-82.) At the Melbourne session, before the first report, "Marriage" was
placed in a separate sub-clause.

§ 200. "Marriage."

Marriage is a relationship originating in contract, but it is something more than a
contract. It is what is technically called a status, involving a complex bundle of rights,
privileges, obligations, and responsibilities which are determined and annexed to it by
law independent of contract. According to the law of England a marriage is a union
between a man and a woman on the same basis as that on which the institution is
recognized throughout Christendom, and its essence is that it is (1) a voluntary union,
(2) for life, (3) of one man and one woman, (4) to the exclusion of all others. (Bethell
V. Hildyard, 38 Ch. D. 220.)

Laws relating to this subject will therefore embrace (1) the establishment of the
relation, including preliminary conditions, contractual capacity, banns, license, con.seut
of parents or guardians, solemnization, evidence, and rules in restraint, (2) the
consequences of the relation, including the status of the married parties, their mutual
rights and obligations, the legitimacy of children and their civil rights. Quaere whether
this power will enable the Parliament to legislate with respect to breach of promise of
marriage ; immoral agreements concerning marriage ; and the separate property of
married women. It could be argued that the first two matters belong to the general
law of contracts, and the last one to the general law relating to civil rights ; both of
which classes of laws are reserved to the States. It might be said, however, that they
impinge on the principal grant of power, " marriage," and are conveyed by it.

In considering the validity of a marriage the requirements of two kinds of laws,
not always coinciding in the same political community, have to be regarded ; one is the
law of the domicile — that is, the law of the country which the contracting parties look
upon as their permanent home ; the other is the law of the place in which the contract
is made, or where the ceremony is performed. As regards the essential qualification and
capacity to enter into the marriage relation, both the lex loci contractiLs and the hx
domicilii must apparently be satisfied ; the formal requisites, the mode of solenuiization
and the like, depend upon the lex loci coiUractus alone. (Westlake, Priv. Internat. Law,
pp. 52-5.)

The policy of the Imperial Grovernnient, to secure uniformity of marriage laws
among the Christian races of the Empire, is shown in the manner in which several

§ 200.] POWERS OF THE PARLIAMENT. 609

colonial Acts to legalize marriage with deceased wife's sister have been discountenanced
ana disallowed. Such amending laws have been, however, at length sanctioned by the
Crown in Ceylon, South Australia, Victoria, Tasmania, New South Wales, Queensland,
Western Australia, New Zealand, Canada, and Barbadoes. In the countries in which
the parties are domiciled the childreu of these marriages are legitimate by statute law,
but in the United Kingdom, these marriages being still regarded as illegal, the offspring
are liable to serious disabilities. By the law of England, " with regard to personal
property the children of these marriages are regarded as legitimate ; but with respect to
realty, the status of legitimacy, which the law of the domicile gives them, is not
recognized, on the ground that the established rule of law in deciding the title of real
estate, lex loci rti sike, excludes such children." ^Hammick's Marriage Law of Eng. and
Cols. p. 253.)

" In regard to such legislation the difficulty still remains, that the Imperial Parlia-
ment has not yet (1892) agreed to this alteration in the law of marriage. Con.sequentl}',
such marriages continue to be illegal in England, and those who avail themselves of the
libertj- afforded by colonial enactments to contract these marriages expose their offspring
to disastrous consequences, as regards both inheritance and legitimacy, in the mother
country. Hitherto, the Imperial Government and Parliament have shown no disposition
to alter the law in this respect, for the behoof of the colonies in question." (Todd's
Pari. Gov. in Col. 2nd ed. 198.)

The personal capacity of parties to enter into the contract of marriage depends upon
their domicile ; and where both parties had a foreign domicile, and, bj- the law of their
domicile, their marriage was invalid by reason of consanguinity, a marriage which was
■contracted in England, and which would have been valid according to English law, was
held invalid. (Sottomayor ?'. De Barros, 3 P.D. 1. Digest of English Case Law, vol.
vii. p. 626.)

A foreign marriage, valid according to the law of the country where it is celebrated,
is good everywhere ; but this applies only to the form, and not to the essentials of the
■contxact. which depend on the lex domicilii. Therefore, if a marriage abroad of English
domiciled subjects is polygamous or incestuous, the law of England will not recognize it,
and will follow in that respect its own rules as to incest and policy. (Brook v. Brook, 9
H.L. Cas. 193. Id.)

W hen an English woman marries a domiciled foreigner, the marriage is constituted
according to the lex loci contractuji ; but she take.e his domicile, and is subject to his law.
{Harvej- v. Farnie, 8 App. Cas. 43. Digest of F^nglish Case Law, vol. viii. p. 215.)

The rule, that the lex loci rmUractws of a marriage establishes its validity, requires
this qualification — that where the law of a country forbids marriage under any particular
circumstances, the prohibition follows the subjects of that countrj* wherever they may
go. Each nation has a right to define and prohibit incest. If a marriage, though good
according to the law of the domicile, were nevertheless contrary to the religious or moral
notions of other States, it would be impossible to contend that it ought to be aidopted by
them. If the comit}' of nations were always to prevail, a foreign marriage between
uncle and niece, under papal dispensation, must be held valid, and the issue might claim
to take a Scotch estate and Scotch honours, although, liad the marriage been contractetl
in Scotland, the parties might have been capitally punished. (Fenton v. Livingstone, 3
Macq. H.L. 497. Id. 216.)

British subjects resident in a British settlement abroad are governed by the laws of
Elngland, and consequently, with respect to marriage, bj' the law of which existed there
before the Marriage Act, viz., the canon law. (Lautour v. Teesdale, 2 Marsh, 243. Id.
p. 217.)

51, (xxii.) Divorce-^^ and matrimonial causes^; and in
relation thereto, parental rights"-''^, and the custody and
guardianship of infants^ :

Historical, Note. — For the history of the sub-section " marriage and divorce," see
Historical Note, sub-sec. xxi. At the Adelaide session, in 1897, a new sub-clause
/'Parental rights, and the custody and guardianship of infants" was added. It was
thought, however, that, except incidentally to matrimonial suits, the control of childreu
"Was not a federal matter, and accordingly at the Sydney session the sub-clause was

610 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxii.

attached to the preceding one, so as to read "Marriage and divorce, and in relation
thereto, parental rights, and the custody and guardianship of infants." (Conv. Deb.,
Syd., 1897, pp. 1082-5.) At the Melbourne session, before the first report, " Marriage "
was placed in a separate sub-clause, and the words " and matrimonial causes " were
added.

§ 201. "Divorce."

Divorce is the termination and dissolution of the marriage relation, by process of
law, for causes assigned. Among these causes are generally recognized such acts or
omissions as are inconsistent and incompatible with, and in violation of, the marriage
state, such as adultery, cruelty, and desertion ; causes less generally recognized are the
perpetration of crimes leading to imprisonment for a lengthened period ; and persistence
in habits that disqualify for the marriage state, such as habitual drunkenness and the
neglect of matrimonial obligations. The object of this sub-section is to enable the
Federal Parliament to abolish the varied and conflicting divorce laws which prevail in
the States, and to establish uniformity in the causes for which divorce may be granted
throughout the Commonwealth. This is considered advisable in order to avoid the
great mistake made by the framers of tlie Constitution of the United States of America,
who left the question to the States to deal with as thej' respectively thought proper.
It has been well said, that if there is one defect in that Constitution more conspicuous
than another it is its inability to provide a number of contiguous and autonomous
communities with uniformity of legislation on subjects of such vital and national
importance as marriage and divorce. At present persons who, according to the law of
the State in which they reside, would have no right to a divorce, may become domiciled
in another State by living there a certain time, and then, according to the laws of that
State, may obtain a divorce for reasons which, in their own State, would have been
insufficient. In some cases they may be divorced without a domicile. All these
circumstances point to the conclusion that, unless we wish to repeat, in these com-
munities, the condition of things which has obtained in America, it is necessary to
provide for uniformity in the law of divorce. (Mr. R. E. O'Connor and Mr. I. A. Isaacs^
Conv. Deb., Syd., p. 1080.)

By the old instructions to colonial Governors, still in use in the Australian colonies
at the establisliment of the Commonwealth, a Governor was required not to assent to
anj' bill for the divorce of persons joined together in holy matrimony unless such bill
contained a clause suspending its operation until the royal pleasure thei'eon was
signified ; otherwise they must be reserved. The royal assent to such reserved bills lias
been frequently refused. Thus a bill passed by the Parliament of Now Soutli Wales to
enable a wife to obtain divorce on the sole ground of her husband's adultery, and one by
Victoria authorizing a divorce for desertion for four years without reasonable cause,
failed in the first instance to receive the royal assent, on the ground that they would
occasion confusion throughout the Empire as to the status of persons so divorced, and of
their offspring. Subsequently these bills received the royal assent and became law.
(Todd's Pari. Gov. in Col. 2nd ed. 197-8.) Tlie present instructions to the Governor-
General of Canada do not contain the paragraph embodied in the old instructions above
referred to, and in all probability it will not appear in the instructions to the Governor-
General of the Commonwealth.

" I would ask hon. members to recollect the view we have taken about the condition
of the Englisli law with respect to marriage with a deceased wife's sister. I think ever}'
colony has petitioned the English Parliament on that subject. 1 know that when we
were at home in 1887, we all agreed in making a jiarticular request to the Imperial
Government to bring in an Act to prevent the unpleasant and anomalous condition of
the laws by whicli people, married in the colonies, when the\' reached England were not
married. We only have to remember the attitude wo took when we weie unanimous
amongst ourselves against the mother country, which lias a diiferent line of legislation,
to understand that we ought to do that amongst ourselves which we wanted England to
do towards us. What subject is more fitted for general legislation? In what subject

§§ 201-203 ]

POWERS OF THE PARLIAMENT. 611

do we want a universal law more than that dealing with the most sacred relations, that
concern not raerelj' the individuals who are parties to the contract, or whatever you
please to call it, but also those who are to come afterwards ? Anyone who seriously
considers the social feelings of pain and grief, and worry and trouble, caused by a
differentiation of the laws of the colonies, as between themselves, on this most vital
subject, must agree that something ought to be done to prevent the anomaly." (Sir
John Downer, Conv. Deb., Syd., 1897, p. 1081.)

"A foreign tribunal has no authority, so far as consequences in England are
concerned, to pronounce a decree of divorce a vinculo in the case of an English marriage
between English subjects, unless such subjects are, at the time of such decree pronounced,
bona fide domiciled in the country where that tribunal has jurisdiction, and the suit is
prosecuted without collusion. (Shaw v. Gould, 37 L.J. Ch. 433. Dig. of Eng. Case
Law, viii. p. 2'26.)

A wife's domicile is that of her husband, and her remedy for matrimonial wrongs
must, as a general rule, be sought in the courts of that domicile ; and, therefore, the
wife of a man not domiciled in England cannot maintain a suit for restitution of conjugal
rights if her husband has left the jurisdiction before the commenc-eraent of the
proceedings. (Firebrace v. Firebrace, 47 L.J. Prob. 41. Id. p. 225.)

The word domicile has many meanings, according as it is used with reference to
succession and other purposes. A person may have retained a foreign domicil for many
purposes, and yet may be domiciled in England, so as to give jurisdiction to the court
for divorce ; but if he has never resided in England except temporarily, and is not there
at the time of the commencement of the suit, he is not subject to its jurisdiction.
(Yelverton v. Yelverton, I Sw. and Tr 574. Id. p. 223. )

Great caution ought to be observed in allowing a petition for divorce to proceed in
the English Divorce Court where there is ground for supposing that the parties are
domiciled out of the jurisdiction. (Sinclair's Divorce Bill, 1897, App. Ca. 469. Dig.
of Eng. Case Law, vol. vii. p. 730.)

When the domicile of the parties is English, the jurisdiction of the court is founded,
though the marriage and adultery mav have taken place abroad. (Ratcliff i'. Ratcliff,
29 L.J. Mat. 111. Id.)

For the purposes of the jurisdiction of the Divorce Court, the British colonies, as
well as Scotland and Ireland, are deemed to be foreign countries. (Firebrace v. Firebrace,
47 L.J. Prob. 41. Id. p. 733.)

§ 202. " Matrimonial Causes."

The matters contemplated and covered by this grant of power are those subsidiary
and consequential to marriage and divorce. They will naturally include judicial
separation, restitution of conjugal rights, nullity of marriage, jactitation, damages
against an adulterer, and probably maintenance of wives and children and marriage
settlements.

§ 203. "Parental Rights."

The Parliament has power to legislate respecting the rights of parents to their
children, but only in relation to divorce and matrimonial causes. Outside and
independent of the area covered by divorce and matrimonial causes, the power of the
States to deal with parental rights remains unaltered. The power to determine the
parental rights of divorced or separated persons with respect to children of the marriage,
is a necessary corollary of the power to dissolve the union by divorce, or to suspend it
by judicial separation ; one is an essential incident and should be the sequence of the
other. Without this conjunction of power the Parliament, whilst able to pass a imiform
law of divorce and judicial separation, would be iinable to pass a uniform law of parental
rights to be enforced in such suits. It would be anomalous for a Federal law to dissolve
or suspend a marriage, and for a State law to decide the destiny of the children of the
marriage.

At common law a father is entitled to the custofly of the child at its mother's
breast, and the court, in making an order as to the custody, pendente lite, will not, unless
some good cause is shown, take away this right. (Cartledge v. Cartledge, 31 L.J.
.Hat. 85. Dig. of Eng. Case Law, vol. vii. p. 789. )

612 COMMENTARIES ON THE CONSTITUTION. [Sec.51-xxiii.

In making an interim order as to the custody of the children, the court will adhere
to, or depart from, the common law rule, according to its discretion. (8pratt v. Spratt,
1 Sw. andTr. 215. Id.)

A divorce and matrimonial court lias jurisdiction by its order to regulate the
custody of children until they attain the age of sixteen. (Mallinson v. Mallinson, .35
L..J. Mat. 84.) But the court has no jurisdiction to make anj' order as to the custody of
children upwards of sixteen years of age. (Rj'der v. Ryder, 30 L.J. Mat. 44. Id.
p. 788.)

In exercising its discretion in the matter of access to children bj' their parents,
pending suit, the court is mainly influenced by consideration for the interests of the
children. (Philip v. Philip, 41 L.J. Prob. 89.)

§ 204. " Custody and Guardianship of Infants."

The power of the Parliament to legislate concerning the custodj' and guardianship
of infants is not a general one ; it is limited to divorce and matrimonial causes. Apart
from that jurisdiction the States retain their former authority in respect to these
matters. (Conv. Deb., Adel., 1897, p. 10S5.)

51. (xxiii.) Invalid and old-age pensions^"^ :

Historical Note. — This sub-section was first proposed by Mr. Howe, at the end of
the Sydney session in 1897, but was not then dealt with. (Conv. Deb., Syd., 1082,
1085-8.) At the Melbourne session, Mr. Howe proposed it again, when after a short
debate it was carried by 26 votes to 4. (Conv. Deb., Melb., pp. 1991-6.)

§ 205. " Invalid and Old-age Pensions."

In considering Mr. J. H. Howe's proposal to place this sub-section in the
Constitution, the question debated was not the policy or practicability of giving
governmental pensions to poor and aged persons, but whether such a power ought to be
left to the States or added to the functions of a Federal Parliament. Tho.se who
doubted the wisdom of the proposal argued that it was a matter which stood in the
same category as State Banking and State Insurance ; that it was a branch of the
charitable systems which existed in the States ; that it could be best dealt with by each
State apart from the Federal authority ; that it might involve embarrassing financial
issues ; that it would tend to load the Constitution with a social problem of complexity
and magnitude, which had better be reserved for the States. In reply to these arguments
it was said that the Federal authority would occupj' a superior vantage-ground which
would enable it to deal effectively and comprehensively with the subject, which could
not be done by the disunited efforts of the States. Such a law should be uniform so as
to reach and regulate the rights and obligations of those who were migratory in their
habits. " The people who would benefit most by this provision," said Mr. Howe, " are
a moving population. They are engaged in seeking work all over Australia, and are
constantly going to those places which, for the time being, are more prosperous than
other places. Our labouring classes will be a nomadic race for a considerable time to
come. If the State took this matter in hand, and made payments compulsory, it could
not follow a contributor to the fund from one State to another. The duty is one which
can only be performed by the Federal authority. (Conv. Deb., Syd., 1897, p. 1086.)

" In these Colonies," said the same hon. gentleman, " men are born in one State,
spend their manhood and best days in another, and then return, broken down and unfortu-
nate, to the land of their birth, which owes them nothing. Is it to be contended that under
such circumstances the State of the unfortunate man's birth should be compelled to
support him ? Surely the support of the aged poor could be better accomplished by a
Federated Australia. Wherever a man may roam within the boundaries of Federated

205.]

POWERS OF THE PARLIAMENT. 613

Australia, he should know that in his old age he need never fear the pauper's lot. I
would compel ever}- able-bodied man, in the he\day of youth, when he has the means,
to make a compulsorj- contribution towards a fund, out of which provision would be
made for his old age. That is another reason why the Federal authority should take it
instead of the State, because within the bounds of Federated Australia a law can be

nacted compelling that individual, who is to receive the benefit, to contribute to the
:und in which he is to participate in old age." (Conv. Deb., Melb., 1898, p. 1992.)

If a precedent were required it could be found in the GJerman Empire, which has
adopted the system of providing invalid and old age pensions. "In Germany it is
compulsory for those in fixed employment, and for emploj-ers, to contribute to a fund
which is subsidized by the Government. Then when a man comes on the fund he does

iOt come upon it as with us a man comes upon the charitable institutions of the country.
He can hold up his head among his fellow men. This law prevents a man who has
fulfilled all the obligations of citizen, husband, and father, from becoming a pauper in

L is declining days. . . . At the present time there are no fewer than 12,000,000 of
leople in Germany subject to this law, and Germany takes the pride of place in having
;>een the first nation in Europe to adopt the system. ... In Australia we have &

ountry far removed by a vast expanse of water from every other part of the world.
' lur labourers will be Australian labourers. Labourers from other lands will not inter-

iiingle with them. We should try to prevent these men from becoming destitute in

heir declining years through no fault of their o%vn. Every member of the Convention
knows of cases where men, who, perhaps, once held high positions, have through force
of circumstances haifl to become inmates of charitable institutions. The poor have to be
kept by the State in any case, and I want the Commonwealth to saj- to those of its
citizens who have attained a certain age, or who have been maimed for life by some
accident, that they shall not want, and need not be a burden upon friends, who, perhaps,
are not able to keep them, but that the Commonwealth shall pro\ide the means from this
fund to which they have contributed whereby they can live. I hope the Convention
will agree to these words being inserted. I am sure that if they do so, the Federal
Parliament will be able to formulate a scheme whereby my object can be achieved, and
thereby crown itself with glorj-." (Hon. J. H. Howe. Conv. Deb., Syd., 1897, p. 1086.)
The Convention after several unsuccessful appeals at last yielded to Mr. Howe's
advocacy' of the cause and granted the power to Parliament, making it a concurrent
authority, which could be exercise*! by the States until it was acted upon by the
Parliament. "And," said Mr. Kingston, "there is no fear whatever that one would
desire to exercise that power to the prejudice of the other. No doubt also the Federated
authority will be armed with greater power for giving eflFect to anything it may desire,
for the reasons which my hon. friend and colleague has pointed out." (Conv. Deb.,
Syd., p. 1087.)

51. (xxiv.) The service'-"* and execution^ throughout the
Commonwealth of the civil and criminal process^ and the
judgments of the courts of the States :

Federal Cor>-cii, of Australasia Act, 1885. — Sa»'ing Her Majest.>-'s prerogative, and subject
to the provisions herein contained with respect to the operation of this Act, the Council
shall have legislative authority in respect to the several matters following : —

(d) The service of civil process of the courts of any colony within Her Majesty's

possessions in Australasia out of the jurisdiction of the colony in which it is
issued:

(e) The enforcement of judgments of courts of law of anj' colony beyond the limits

of the colony :
(/) The enforcement of criminal process beyond the limits of the colony in which it is
issued, and the extradition of offenders (including deserters" of wives and
children, and deserters from the Imperial or Colonial naval or militarj- forces). —
Fed. Council of Aust. Act, 1885, sec. 15.

614 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxiv.

Historical Note. — No provision corresponding to this sub-section is to be found in
the Constitution of the United States of America, or in that of Canada. It first
appeared in the Federal Council of Australasia Act, 1885, section 15, supra. In the
Commonwealth Bill of 1891 the provision appeared in exactly the same form as that in
which it now stands in this sub-section. (Conv. Deb., Syd. , 1891, pp. 686-8.) At the
Adelaide session it was inserted in its present form. At the Melbourne session a
suggestion by the Legislative Council of New South Wales, to omit "throughout the
Commonwealth," was negatived. (Conv. Deb., Melb. , p. 29.)

§ 206. " SerYice."

The object of this sub-section is to provide a uniform law for the service of civil and
criminal process, for the execution of civil and criminal process, and for the execution
of the judgments of the courts of the States, throughout the Commonwealth. With
reference to the service, beyond the limits of a colony, of civil process issued within a
colony, the constitutionality of laws passed by Colonial legislatures authorizing this to
be done has often been questioned. Service, of course, is generally recognized as the
foundation of jurisdiction in civil cases. No man can be legally bound by a judgmeut
given behind his back and without his having had an opportunity of being heard.
fPer Erie, C.J., in re Brook, 33 L.J. C.P. 246.) Now, the Colonial Constitutions gave
authority to the Colonial legislatures to make laws for the peace, order, and good
government of their respective colonies. Those legislatures were not sovereign, like the
British Parliament ; their powers were strictly circumscribed and defined by their
respective Constitutions, and it was contended that whilst they could legislate concerning
the service of process within their territorial limits, they could not, in the absence of an
express grant of power from the Imperial Parliament, give their courts jurisdiction
over persons and property situated outside those limits. In several cases the Colonial
courts have been asked not to shrink from the responsibility of declaring void Colonial
legislative enactments which purported to apply to acts done by persons residing, and
property located, outside the territorial limits. In most of these cases the courts have
refused to disregard the mandates of the legislative departments.

In connection with Acts which authorize the initiation of civil proceedings against
defendants absent from the law-making country, two questions have to be kept steadily
in view and distinguished. (1) Are these statutes valid and binding on the courts within
the territory of the lawmakers ? (2) Will foreign courts recognize judgments obtained
in civil proceedings so initiated ? Several cases have been decided, from which it appears
that the first question ought to be answered in the affirmative. (Lefroy, Leg. Pow. in
Can. p. 330.)

In Banks v. Orrell (1878, 4 Y.L.R. [L.] 219), the question was raised as to the
validity of the service in New South Wales of a writ of the Supreme Court of Victoria.
By the Common Law Procedure Act, 1865 (Vic ), sec. 90, it was declared that a writ of
summons in any action might be served in any part of Victoria or within fifty miles of
the frontier or border thereof. Counsel in support of the service (Mr. Geo. Higinbotham,
afterwards Chief Justice), admitted arguendo that the legislature had usurped jurisdiction
pro tanto outside its territory, but he contended that as the power was given, the court
was bound to carry it out. The Supreme Court lield that every Act of the legislature
must be obeyed, whatever its meaning. In Regina v. Call ex parte Murphy (1881,
7 V.L.R. [L ] 113), Chief Justice Stawell said :— " It has always appeared to me to l)e
the duty of the court to assume that Parliament will not lightly attempt to exceed its
territory. "

By the Judicature Act, 1883 (Vic), sec. 90 of the Common Law Procedure Act was
repealed, and provision, founded on sec. 18 of the (Imperial) Common Law Procedure
Act, 1852, (15 and 16 Vic. c. 76), was made for the issue of a writ of summons " on any
defendant being a British subject residing out of the jurisdiction of the Court in any

^206.] POWERS OF THE PARLIAMENT. 615

place ;" and on proof that there is a cause of action which arose within the jarisdiction,
or in respect of the breach of a contract made witliin the jurisdiction or the breach
within the jurisdiction of a contract wherever made, or in respect of property within the
jurisdiction, and that the M'rit has Ijeeu pei-sonally served on the defendant, or that
reasonable efforts were made to effect service, and that it came to his knowledge, the
judge may allow the plaintiff to proceed in the action. There is a similar law in New
South Wales (Common Law Procedure Act, 1899. sec. 18).

It has been held that this procedure applies to individuals and not to corporations.
(Connell v. Neill and Co., 7 W.N. [N.S.W.j 6 ; Lempriere i'. New Pinnacle Group S.M.
Co. No Liab., 21 A.L.T. 182 [Vic.].)

Another provision for the extra-territorial service of civil process, applicable to
minor courts, has been marie by se%'eral Australian Legislatures. By the Victorian
Intercolonial Debts Act, 1887, re-enacted in the County Court Act, 1890, sees. 142-4,
authority is given to serve County Court Summonses on defendants out of the jurisdiction,
in Australian colonies, in which there are laws in force by which effect may be given, by
the local courts of such colonies, to the jmlgmeiits of the County Court of Victoria. On
recovering judgment against an absent defendant, within any of the reciprocating
provinces or colonies, the plaintiff is enabled to procure a certificate of judgment ; this
certificate is sent on to the clerk of the local court of tlie other colony in which the
absent <lefendant is resident, and in which execution is then issued. Similar and
reciprocal Acts were passed in South Australia (Intercolonial Debts Act, 1887), and in
New South Wales (Intercolonial Debts Act, 1889).

The ineffectiveness of this kind of legislation, and the necessity of a federal law
regulating service of process and execution of judgment, has been recently illustrated in
a striking manner in the case of Blkan v. De La Juvenay, decided by the Full Court of
Victoria on the 10th August, 1900.

In March of that year, Madame De la Juvenay, of Camberwell, near Melbourne,
was served at her residence with a summons issued from the local court of South
Australia, claiming £9 as the amount of two promissory notes. She was domiciled and
resident in Victoria, and endorsed the promissory notes there, but they were payable in
Adelaide. She did not appear to answer the summons, and judgment was entered up in
Adelaide by default. It was transferred to the Victorian County Court, and on 8th
May iladame De la Juvenay was served with a notice of the judgment. This was
followed up next morning by a writ of execution. Under protest, she paid the money,
and af terward.s applied to have the judgment set aside. Mr. Justice A'Beckett, however,
held that the Intercolonial Debts Act of 1887, now represented by sections 1H8 to 145 of
the County Court Act of I89i), established a system of reciprocity between Victoria and
any colony as to which a proclamation had been issued. An appeal was made on the
ground that as the defendant was domiciled in Victoria, and had not submitted in any
way to the South Austialian jurisdiction. t4ie judgment was not enforceable against her
in Victoria, and was null by international law. The Full Court allowefl the appeal.
The Chief Justice (Sir John Madden) pointed out that it was a well understood
proposition of international law that a subject of one State was not bound to obey the
judgments of another State unless he chose to submit himself to its jurisdiction. The
colonies were, for a purpose of this kind, as much apart as if they were foreign States.
Itwasnow contended, practically, that whenever a cause of action arose in South Australia
agaiust a Victorian, althougli the Victorian had never Ijeen in the other colony at all,
the South Australian court had as much juristliction against him as if he had lived all
his life there. This would be a striking change in the ordinary principles of law, and
what had happened was wrong. The Act only applied to cases in which a resident of
one colony had gone to another colony ; not to cases in which the defendant had never
submitted to the jurisdiction of the colony in which the plaintiff' sued. In the view the
court took, Madame De la Juvenay was a person not liable to be sued
effectually in the circumstances. The judgment was set aside, and the money paid

616 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxiv.

upon the unlawful execution was ordered to be handed back. (The Age, 11 August,
1900; 22A.L.T. p. 34.)

The New Zealand Parliament passed an Act (New Zealand Code, 46 Vic. No. 29,
Ride 53) authorizing the courts of that colony, in any action founded on a contract made
or to be performed within the colony, to decide whether they will allow a plaintiff to issue
a writ and proceed against an absent defendant without service of the writ. In Ashbury
V. Ellis (1893), App. Cas. 339, the Privy Council held that this was a valid law, and that
it was competent for the legislature of New Zealand, under the Constitution of that
colony, to subject to its tribunals persons who were neither by themselves nor their
agents present in the colony, in actions founded on any contract made or entered into
or wholly or in part to be performed within the colony. Referring to the argument
that a judgment so obtained could not be enforced beyond the limits of New Zealand,
their lordships said that "when a judgment of any tribunal comes to be enforced
in another country, its effect will be judged by the courts of that country with regard to
all the circumstances of the case. For trying the validity of New Zealand laws, it is
sufficient to say that the peace, order, and good government of New Zealand are pro-
moted by the enforcement of the decrees of their own courts in New Zealand."

In reference to the second of the above questions the answer may be gleaned from
numerous cases decided in England. In Simpson v. Togo, 32 L.J. Ch. 249, it was held
that the same rules are applicable in the enforcement of colonial judgments as in the
enforcement of foreign judgments. In Buchanan v. Rucker, 9 East 192, the facts were
that a law of the island of Tobago, a British colony, enacted that if a defendant were
absent from the island he might be summoned by nailing up a copy of the declaration at
the Court-house door, and this should be deemed good service. Lord EUenborough, C. J.,
held that on a fair construction of the Act this must be intended to apply to one who
had been present and subject to the jurisdiction ; and that if it had been meant to reach
strangers to the jurisdiction, it would not have bound them. The principle affirmed
was that an action is not maintainable on a colonial judgment, unless it appears that
the defendant was regularly served with process, and had an opportunity of defending
the suit, even although it appears to be the practice of that court not to give personal
notice. The rule to be deduced from the cases is, that where the defendant against
whom a judgment has been obtained in a colonial court, under such local Acts as we have
been considering, authorizing service of process in ahsevtem, is, or even has been, subject
to the jurisdiction of the colony, such judgment will be recognized in the courts in
England where otherwise it would not be. (Lefroy, Leg. Pow. in Can. p. 332.)

Under this sub-section of the Constitution a most important power is conferred on
the Federal Parliament. It will enable that Parliament to provide procedure for the
service, throughout the Commonwealth, of the civil process of the courts of the States,
such as writs, summonses, notices of legal applications issued in and bj' the courts of
the States. This includes the service of the civil process of the inferior as well as the
superior courts of the States ; so that it will be as competent to provide for the service
in one State of a summons issued by a local court or a court of petty sessions in another
State, as for the service of Supreme Court writs. Such a law would appropriately
specify the mode of service, whetlier personal or substituted, to be observed. It could
also define the persons, whether private individuals or public officers, who are qualified
to effect service. Another essential would be proof of service, sufficient to satisfy the
adjudicating tribunal and give it jurisdiction. (Bank of Australasia v. Nias, 16 Q.B. 717.)

§ 207. "Execution."

Legal process includes not only the writ and summons to appear, but all the steps
taken by the court in execution of its judgment ; hence seizure, sale, and sequestration
are, in the natural meaning of the words, comprehended in the term process. (Por
Lynch, J., in re Delahoyd, 11 Ir. Ch. R. 407.) The power to legislate concerning

§§ 207-208.]

POWERS OF THE PARLIAMENT. 617

" the execution throughout the Commonwealth of the civil process and judgments of the
Courts of the States " clearly extends to all these matters.

This sub-section does something more than provide for the inter-state recognition of
judgments ; it means the inter-state execution of judgments. Under this power a law
could be passed authorizing the enforcement, within one State, of a judgment recovered
in a civil action in another State ; so that a writ of execution issued by the Supreme
Coiirt of one State, or a warrant of distress issued by a court of petty sessions therein,
could be enforced by seizure and sale, in another State, of the assets of a person against
whom a judgment or order has been recorded. It might go so far as to authorize the
sheriif and constables of each State to execute writs and warrants issued by the courts
of the other States. (Con v. Deb., Adel., p. 1006.)

Without this sub-section a judgment recovered in one State would not carry with it
into another State the efficacy of a judgment, affecting property or persons, which
could be enforced by direct execution ; to give it such force in another State it would
have to be made a judgment there iinder local laws ; which could only be executed in
that State as its laws permitted. (Baker, Annot. Const, p. 152.)

§ 208. "Criminal Process."

Process includes the doing of something in a criminal court or proceeding, as well
as in a civil court or proceeding. A summons from a judicial officer to appear and
answer a criminal charge is a process. A warrant issued by a judicial officer, directing
the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parlia-
ment to deal with a class of cases which, it has been held, is not within the competence
of the Colonial legislatures to regulate ; viz., the transfer of persons charged with crime
from one colonj- to another. This disability is founded on the territorial limitations to
which the Colonial legislatures are restricted.

In 185.5 the law officers of the Crown in England, on being asked to give their
opinion with referencf* to a case arising in British Guiana, said — " We conceive
that the Colonial legislature cannot legally exercise its jurisdiction beyond its territorial
limits — three miles from the shore — or, at most, can onh' do this over persons domiciled
in the colony who may offend against its ordinances even beyond those limits, but not
over other persons.'' (Forsyth, Constitutional Cases, p 24.)

In 1861 a Canadian Act was passed and assented toby the Governor which purported
to give jurisdiction to Canadian magistrates, in respect of certain offences committed in
New Brunswick by persons afterwards escaping to Canada. By order of the Queen in
Council, 7th January, 1862, this Act was disallowetl, as being in excess of the jurisdiction
belonging to the Canadian Parliament, and only to be properly effected bj- Imperial
legislation ; or by an arrangement in the nature of an agreement of extradition between
the two provinces, to be carried into effect by Acts of the two provincial legislatures.
(Todd's Pari. Gov. in the Col. 2nd ed. p. 177.)

In Ray v. MacMackin (1875), 1 V.L.R. (L.) 274, it was decided that the power of
extradition, from one part of the British dominions to another, was not inherent in the
legislature of any colony, but required the sanction of the Imperial Parliament ; that a
Colonial legislature may authorize the exclusion from its territory of a person charged
with having committed an offence in another colony, and it may order his punishment
unless he leaves, but it cannot authorize the sending him in custody out ot its territory
into another colony. This was the case of a man arrested in New South Wales on a
warrant issued by a magistrate m Victoria. The warrant was endorsed in New South
Wales by a justice of that colony, who directed a constable to remove the accused in
custody to Melbourne. The endoi-sement was made by the Sydney justice on the
authority of a Xew South Wales Act (14 Vic. No. 43, s. 4). This section was passed
before the separation of Victoria from that colony, and applied the provisions of Jai"\'is'

618 COMMENTARIES ON THE CONSTITUTION. [Sec.Sl-xxiv.

Act (11 and 12 Vic. c. 42) as to backing warrants. It was intended to authorize the
backing of intercolonial warrants, making them operate in the same manner as was the
case between England and Ireland. In an action afterwards brought in Victoria by the
arrested man against the arresting constable, for false imprisonment in placing him in
a vessel and in conveying him over the high seas from Sydney to Melbourne, it was
held by the Supreme Court of Victoria that the Act was ^dtra vires and was no defence
to the action. " It was distinctly enunciated that the superior Courts in England will
regard Acts of Colonial Legislatures in the same way as they regard Acts of foreign
countries legislating with respect to their inhabitants within the limits of their authority.
Any attempt to exercise jurisdiction beyond the boundaries of their own territory,
domestic or distant, by either one or the other, is treated as being beyond the powers of
their legislatures. Whatever power or authority the Legislature of New South Wales
lias to frame laws to cause persons chai-ged with the commission of misdemeanours in
other countries, to be appreliended within that colony, and to be detaineii in prison
there, it is a totally different thing to say that it can give a magistrate power to expel
such persons from the colony, and send them across the seas to another part of the
world. " (Per Barry, J. , 1 V. L. R. (L) p. 280. )

In 1863 the New Zealand Legislature passed the Foreign Offenders Apprehension
Act, which authorized the deportation of persons charged with indictable misdemeanours
committed in other Australian colonies, and their surrender to the authorities of the
colony where the oifence was committed. Doubts were at the time entertained as to its
validity, but it was not disallowed. In 1879 one Gleich, an absconding bankrupt from
South Australia, was arrested in New Zealand, and it was proposed to deport him back
to South Australia. He was brought before the Supreme Court of New Zealand, which
decided that a colonial legislature had no power to authorize the conveyance on the
high sea to another colony, and the detention outside its jurisdiction, of anj- person
whatever ; that such power could be only exercised either directly by the authority of
an Imperial Act, or in the exercise of power expressly conferred on a colonial
legislature, by an Imperial Act. (Todd, Pari. Gov. in Col. 2nd ed. p. 303.)

In the case of Regina v. Call, ex -/larit Murphy (1881), 7 V.L.R. (L.) 113, tlie
Supreme Court of Victoria decided that the power given by section 63 of the Justices of
the Peace Statute, 1865 (Vic), to a justice in Victoria, to endorse a warrant for the
apprehension of an offender, "whether such warrant has been issued in Victoria or
elsewhere," was not ultra vires, as it did not direct any act to be done beyond the
territorial limits of Victoria. It was, further, the opinion of the court that on the
production of a warrant issued in New Soutli Wales, and proof of the handwriting of
the justices issuing it, and that the person bringing it is one of the persons to whom it
was originally addressed, it is the duty of the justices to whom it is produced to
endorse it ; but the last few lines of the form in the 13tli schedule referred to in tlie
margin of sec. 63 are not warranted by that section, and are incongruous. Such endorse-
ment will then authorize the person holding the warrant to take the offender to the
border of the colony, where the warrant itself will autliorize him to complete the
execution of it. Per Higinbotham, J. : " The endorsement would authorize the taking
of the offender into New South Wales to the justice who i8sue<i the warrant." (7 V.L.R.
[L.] 113.)

Owing to tlie difficulties arising from the territorial limitations of the power of
Colonial legislatures, it has been the practice of late years for fugitive offenders,
escaping from one colony into anotlier, to be arrested and returned luider the provisions
of Imperial Acts relating to the extradition of criminals.

Imperial Fugitive Offenders Act.— By the Fugitive Offenders Act, 1843 (6 and 7
Vic. c. 34), provision was made for the apprehension in the United Kingdom, or in I lie
Colonies, of persons charged with felony committed in a colony. By the Foreign
Jurisdiction Act, 1878 (41 and 42 Vic. c. 67), this Act was extended to places to whicli
the Foreign Jurisdiction Act, 1843, applied. Aft*r the decision of the Supreme Court of

§208.]

POWERS OF THE PARLIAMENT. 619

New Zealand in Gleich's case, holding that the New Zealand Foreign Offenders
Apprehension Act, 1863, was ultra vires, the Governor of the colony in reporting the
case to the Secretary of State for the Colonies expressed a hope that the Imperial
Parliament would remedy the defect in the law, disclosed by that decision, by extending
the procedure provided by the Fugitive Offenders Act, 184.3. Shortly afterwards the
Imperial Parliament passed the Fugitive Offenders Act, 1881 (44 and 4-5 Vic. c. 69), which
formulated a uniform plan, facilitating the apprehension and trial of persons committing
crimes in one part of the British dominions and escaping to another. This Act provides
that a person, accused of having committed an offence in one part of the Empire, may,
if found in another part, be apprehended and returned to the part from which he is a
fugitive. A warrant issued in the part of the Empire from which the accused is a
fugitive, and endorsed bj- the proper authority in the part of the Empire in which the
accused is found, is sufficient authority for his arrest. A person found in one part of the
British dominion and suspected of having committed an offence in another part, maj'
also be arrested on a provisional warrant, signed by a magistrate in that part of the
dominion in which he happens to be found. Upon his apprehension the accused must be
brought before a magistrate, by whom he may be remanded pending the arrival of an
endorsed warrant. After the expiration of fifteen daj-s the Governor of the possession
in which the arrest is made, or if the arrest is made in the United Kingdom, the
Secretary of State, is authorized to issue a warrant ordering the fugitive to be returned
to that part of the dominions from which he has escaped. The above provisions of the
Act apply to all offences punishable, in the place where committed, by imprisonment
with hard labour for a term of twelve months or more. Bj^ part II. of the Act a
procedure of a simpler character is formulated and made applicable to groups of contiguous
colonies, in which it may by Order in Council be declared in force. Under this part, the
inter-colonial backing of warrants by magistrates, and the return of fugitives without
the formalit}' of a warrant signed by the Governor of a colony in which the fugitive is
found, was legalized. Tliis law was declared applicable to the Australian colonies by
Order in Council, dated 23rd August, 1883.

The sub-section now under review will facilitate Federal legislation to enforce the
service and execution throughout the Commonwealth of the criminal process issued by the
courts of a State for the arrest of offenders within any State. It will enable the
Parliament to formulate a simple procedure for effecting what now can only be done
under the authority of the Imperial Fugitive Offenders Act, and to authorize the
execution of magistrates' warrants for the apprehension of offenders in every part of the
Commonwealth. This power is clearly restricted to inter-state extradition, or its
equivalent. Inter-British and inter-national extradition will still be governed by
Imperial legislation, although auxiliary laws may be passed by the Federal Parliament
under 51 — xix., "External Affairs," facilitating the enforcement of the Imperial
legislation. (See Notes, § 214, infra.)

Inter-state Extraditiox in America.— The part of this sub-section relating to
inter-state arrest on criminal process pro\-ides a summary method of accomplishing
inter-state extradition. The same object was aimed at by Art. IV. sec. ii. sub-sec. 2 of
the Constitution of the United States of America, which enacts that " A person charged
in any State with treason, felony, or other crime, who shall flee from justice and be
found in another State, shall, on demand of the executive authority pf the State from
which he fled, be delivered up, to be removed to the State having jurisdiction of the
crime." The difference between the two procedures is, that under the Constitution of
the Commonwealth, inter-state fugitives may be arrested and returned from one State to
another without the intervention of the Executive Government of any State ; the whole
process may be a judicial one, superintended by the courts, and uncontrolled bv the
Executive in either State. In America the return of a fugitive offender from one State
of the Union to another depends upon the will of the Executive Government of the State
in which the offender is found.

620 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxv.

Some cases decided by the Supreme Court of the United States of America, under
the above section, may be cited in illustration of its working and as showing what cases
may be covered by the phrase " criminal process." In Kentucky v. Deunison (24 How.
66), it was ruled that " the words of this article embrace every act forbidden and made
punishable by a law of the State, whether treason, felony, or misdemeanour, and give
the right to the State where any such crime is committed to demand the fugitive from
the Executive of the State to which he has fled." If a person is arrested in one State on
an inter-state warrant, charged with having committed a crime in another State, it would
appear that the State courts have power by writ of habeas corpus to inquire into the
legality of the arrest. (Robb v. Connolly, 111 U.S. 624.) A person arrested upon a
requisition warrant may have the legality of his arrest tested by the courts, and to this
end the State courts have jurisdiction in habeas corpus. (Roberts i;. Reilly, 116 U.S.
80.) It must appear that the crime with which the fugitive stands charged was
committed within the State making the demand. This provision, by the obvious import
of its terms, has no relation whatsoever to foreign nations, but is confined in its operation
to the States of the Union. (Per Mr. Justice Barbour, in Holmes v. Jennison, 14 Pet.
587.)

51. (xxv.) The recognition^"^ throughout the Common-
wealth of the laws, the public Acts and records, and the
judicial proceedings of the States :

Historical Note. — This sub-section was introduced verbatim in the Bill of 1891
and was adopted by the Convention of 1897-8 without debate. (See Historical Note,
p. 118.)

§ 209. "Recognition."

As service and execution are the dominant features of the preceding faub-section, so
" recognition" is the ruling principle of this one. It is founded on Art. IV. sec. 1 of the
Constitution of the U.S. of America, which is as follows : — " Full faith and ciedit shall
be given in each State to the public acts, records, and judicial proceedings of every other
State. And the Congress may, by general laws, prescribe the manner in which such
acts, records, and proceedings shall be proved, and the effect thereof." This sub-section
is partly reproduced in a declaratory form in section 118 of the Constitution of the
Commonwealth which reads: — "Full faith and credit shall be given, throughout the
Commonwealth, to the laws, the public acts and records, and the judicial proceedings,
of every State."

Under this power the Parliament may legislate in order to give eflFect to sec. 118.
The Supreme Court of the United States of America, in a series of decisions under a
section of that Constitution corresponding to sec. 118 of ours, has decided that a
judgment rendered in one State does not carry with it into another State the efHcacy of
a judgment affecting property or persons to be enforced by direct and immediate
execution. In order to give it such force in another State it must be made a judgment
there, and it can only be executed there as the laws of the States permit. The record of
a judgment in one State, rendered after due notice, is conclusive evidence in the courts
of another State, as well as in the courts of the United States, of the matter adjudged.
A judgment so recorded differs from judgments recorded in a foreign country, in these
respects (1) it is not re-examinable on its merits ; (2) it is not impeachable for fraud in
obtaining it, if rendered by a court having jurisdiction of the cause and the parties.
This provision was not intended to confer any new powers upon the States, but simply
to regulate the effect of their acknowledged jurisdiction over persons and things within
their territory. It did not make the judgments of other States domestic judgments, to
all intents and purposes, but only gave a general validity, faith and credit to their

§ 209.]

POWERS OF THE PARLIAMENT. 621

evidence. The above principles are deduced from cases cited in Baker, A.C., 152.
"So I take it," said Mr. Barton, "that the effect of this clause will be to cause the
courts of the Commonwealth to take judicial notice of the laws, acts, and records of the
States, without the necessity of requiring them to be proved by cumbrous evidence."
{Conv. Deb., Adel., p. 1005.)

This sub-section appeared in the Draft Bill of 1891. On the consideration of the
sub-section by the Convention of 1891, Mr. (now Sir Richard) Baker asked whether it
would include the recognition, in one State, of probate of a will issued in another.
"There was," he said, " a great deal of unnecessary expense and trouble in the
registration of probates and letters of administration issued by one colony in another
eolony." " I think," said Sir Samuel Griffith, in repl}', " that probate of a will must be
regarded as coming under the heading of a judicial proceeding." . . " This is a
clause to enable the Federal Parliament to make a law recognizing a judicial proceeding
— that is, probate. But it recognizes the probate for what it purports to be ; that is,
the proof of the will and the committal of the administration of the property in that
State to some person. The committal of the administration of the property' iu any
State is a matter for that State. Another State will recognize the probate ; but they
do not necessarily commit the administration to the same person. They will recognize
the will as far as the judicial proof of it extends and no further." (Conv. Deb., Syd.,
1891, p. 686-7.)

At the Adelaide session of the Convention of 1897, when the sub-section was
discussed, Mr. Henry Dobson enquired " whether, under it, the courts of the other
colonies would take cognizance of the appointment of a Receiver or Trustee of Lunacy
or Curator of Intestate Estates ; so that upon the registration of the document making
the appointment, assets and lands in different colonies can be administered. I want to
know whether under this section we can have some such machinery as that under the
Probate Acts, where probate granted in one colony is sealed in another colony, whereby
the will is practically proved in another colony, so that estates of an intestate or
lunatic may be administered under the one authority. If a man dies intestate in one
colony, would the administrator or curator be able to register his appointment in
another colony and deal with the assets there ?" In reply to these enquiries the
American cases decided under the corresponding clause were cited by Mr. Barton. It
was suggested that this sub-section alone merely meant to refer to the evidence necessary
to secure the credit and recognition of laws, public acts, records, and judicial proceed-
ings of the courts of the States, but that, read in conjunction with the preceding
sub-section xxiv., referring to " service " and " execution," it might mean something
more than mere credit and recognition. It is submitted that under this sub-section
provision might be made for the inter-state cognizance of such appoint me nts'as those of
executor, administrator, curator of intestate estates, and trustee in lunacy, as these
appointments are generally made by the courts, and hence come within the category of
public acts, records, and judicial proceedings. If such legal representatives obtain a
judgment or order in a court of competent jurisdiction, within the State to which the
deceased person or the lunatic belonged, they could, aided by appropriate legislation
under sub-sec. xxiv., issue process and enforce the same by sale of lands and chattels in
another State. (Conv. Deb., Adel., 1897, p. 1005.)

622 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxvi.

51. (xxvi.) The people of any raee^^°, other than the
aboriginal race in any State, for whom it is deemed necessary
to make special laws :

Historical Note. — In the Bill of 1891 the following sub-clause was comprised
among the exclusive powers of the Federal Parliament: — "The affairs of people of any
race with respect to whom it is deemed necessary to make special laws not applicable to
the general community ; but so that this power shall not extend to authorize legislation
with respect to the affairs of the aboriginal native race in Australia and the Maori race
in New Zealand." (Conv. Deb., Syd., 1891, pp. 701-4.) At the Adelaide session the
sub-clause was introduced and passed in substantially the same words. (Conv. Deb.,
Adel., pp. 830-1.)

At the Melbourne session, a debate occurred on the question whether this power
ought to be exclusive, so that the State Parliament, in the absence of Federation,
would be unable to make special laws in respect of alien races within their territory.
Eventually the sub-clause was omitted, on the understanding that it would be placed
among the concurrent powers of the Parliament. (Conv. Deb., Melb., pp. 227-56.)
Accordingly before the first report the sub-clause was inserted in its present form.

§ 210. " The People of any Race."

This sub-section does not refer to immigration ; that is covered by sub-sec. xxvii.
It enables the Parliament to deal with the people of any alien race after they have
entered the Commonwealth ; to localize them within defined areas, to restrict their
migration, to confine them to certain occupations, or to give them special protection and
secure their return after a certain period to the country whence they came.

In the Draft Bill of 1891, this sub-section appeared as the first of a group of three
subjects, with reference to which the Parliament was assigned exclusive legislative
power. It is now placed in the list of powers generallj^ described as concurrent ; that
is to say, the States may occupy the ground until the Federal authority interferes and
displaces them. The sub-section can only exclude the action of State legislation
respecting "the people of any race," when tlie Federal Parliament declares, by legis-
lation, that such race is a race " for whom it is deemed necessary to make special laws."
Before such legislation the State Parliaments will be free to pass laws concerning any
part of their resident population, including the people of any particular race, coloured
or otherwise, but as soon as the Federal Parliament by legislative intervention has shown
that it has dealt with, or contemplates dealing with, the people of a particular race V)y
special laws, the power to discriminate in respect of that race will thenceforth bo
exclusively vested in it and the State legislatures will be deprived of jurisdiction.

Under the fourteenth amendment of the Constitution of the United States it is
enacted that : —

" All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they i-eside. No
State shall make or enforce any law which shall abridge the privileges or imnuinities of
citizens of the United States ; nor shall any State deprive any person of life, liberty, or
property, without due process of law, nor deny to any person within its jurisdiction the
equal protection of the laws."

An ordinance or by-law of the City and County of San Francisco vested in the
supervisors the power to grant to or withhold from certain persons within certain limits
licenses to conduct laundi-ies. This power was exercised discriminatingly ; laundry
licenses were granted to Europeans and denied to Chinamen. In the case of Yick Wo r.
Hopkins (IJ8 U.S. .SoG), it was decided that these laws were unconstitutional and void.
It M'as held that the fourteenth amendment is not confined to tiie protection of citizens.
It is applicable alike to all " persons" within the territory, without regard to differences
of race, colour, or nationality ; and the " equal protection of the laws" is a pledge of

§§210-211.] POWERS OF THE PARLIAMENT. 623

the protection of equal laws. Though the law itself be fair on its face, and impartial
in appearance, yet if it is applied and administered by public authority with an evil eye
and an unequal hand, so as to practically to make unjust and illegal discriminations
between per-sons in similar circumstances, material to their rights, the denial of equal
justice is still Avithin the prohibition of the constitution. (Yiek Wo r. Hopkins, 118
U.S. 356, citing Henderson v. Mayor of X.Y., 92 U.S. 259 ; Ch}- Lung v. Freeman, 92
U.S. 275 ; ex parte Virginia, 100 U.S. 339 ; Xeal v. Delaware, 103 U.S. 370 ; Soon Hing
V. Crowley, 113 U.S. 703. Baker, Annot. Const. 220.)

The decision in Yick Wo's case turned, of course, on the special inhibitions of the
fourteenth amendment. There is no section in the Constitution of the Commonwealth
containing similar inhibitions. On the contrary it would seem that by Sub-sec. xxvi.
the Federal Parliament will have power to pass special and discriminating laws relating-
to •' the people of any race," and that such laws could not be challenged on the ground
of unconstitutionality, as was done in Yick Wo v. Hopkins.

51. (xxvii.) Immigration-^^ and emigration^'- :

Historical Note. — This sub-section was in the Bill of 1891. (Conv. Deb., Syd.,
1891, p. 689.) It was adopted verbatim and without debate by the Convention of
1897-8.

§ 211. "Immigration."

iNTERNATioyAL ASPECT. — It is a recogniscd canon of international law and inter-
course that every sovereign State has a paramount right to exclude from its borders all
elements of foreign population which, for any reason, might retard its prosperity or be
detrimental to the moral and physical health of its people. (Per Mr. Grover Cleveland,
President of the United States of America ; message to Congress re Chinese Exclusion
Bill, 1st Oct., 1888.)

PoLiTiCAi. Aspect. — Referring to the same subject from an ethnical and political
point of view. Dr. Burgess says : —

" Let us suppose the case of a great colonial empire. Its life will depend, of course,
upon the intensest nationalit\' in that part of its territory which is the nucleus of the
entire organization. It cannot suSer national conflicts to make this their battle ground.
The reigning nationality is in perfect right, and pursues, from a scientific point of view,
an unassailable policy, when it insists, with unflinching determination, upon ethnical
homogeneity here. It should realize this, of course, through the peaceable means of
influence and education, if possible. When, however, these shall have been exhausted
in vain, then force is justifiable. A State is not only following a sound public policy,
but one which is ethnically obligatory upon it, when it protects its nationality against
the deleterious influenc-es of foreign immigration. Every State has. of course, a duty to
the world. It must contribute its just share to the civilization of the world.
In orrler to discharge this duty, it must open itself, as freely as is consistent
with the maintenance of its own existence and just interests, to commerce and inter-
course, ingress and egress ; but it is under no obligation to the world to go beyond these
limits. It cannot be demanded of a State that it sacrifice itself to some higher good.
It cannot fulfil its mission in that yray. It represents itself the highest good. It is the
highest entity. The world has as yet no organization into which a State may merge its
existence. The w orld is as yet only an idea. It can give no passports which a State is
bound to accept. The duty of a State to the world is a duty of which the State itself is
the highest interpreter. The highest dut\" of a State is to preserve its own existence,
its own healthful growth and development. So long as foreign immigration contributes
to these, it is sound policy not only to permit, but to cultivate it. On the other hand,
■when the national language, customs, and institutions begin to be endangered bj*
immigration, then the time has come for the State to close the gateways partly or wholly,
its the case may require, and give itself time to educate the incomers into ethnical
iiarmony with the fundamental principles of its own individual life. It is a most
dangerous and reprehensible piece of demagogism to demand that a State shall suffer
injury to its own national existence through an unlimited right of ingress ; and it is an
unendurable piece of deception, conscious or unconscious, when the claim is made from
the standpoint of a superior humanity."' (Political Sci. 1. pp. 42.3.)

€24 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxvii.

Legal Point of View. — The legal aspect of the subject of political control over
immigration was dealt with by the Privy Council in the celebrated case of Chun Teong
Toyw. Musgrove (1891), App. Cas., 272, on appeal from the Supreme Court of Victoria,
in which it was held that an alien has no legal right, enforceable by action, to enter
British territory.

" Their Lordships would observe that the facts appearing on the record raise, quite
apart from the statutes referred to, a grave question as to the plaintiffs right to maintain
the action. He can only do so if he can establish that an alien has a legal right, enforce-
able by action, to enter British territory. No authority exists for the proposition that an
alien has any such right. Circumstances may occur in which the refusal to permit an
alien to land might be such an interference with international comity as would properly
give rise to diplomatic remonstrance from the country of which he was a native, but it
is quite another thing to assert that an alien excluded from anj' part of Her Majesty's
dominions by the executive government there, can maintain an action in a British
Court, and raise such questions as were argued before their Lordships on the present
-appeal — whether the proper officer for giving or refusing access to the country has been
duly authorized by his own colonial government, whether the colonial government has
received sufficient delegated authority from the Crown to exercise the authority which
the Crown had a right to exercise through the colonial government if properly communi-
cated to it, and whether the Crown has the right without Parliamentary authority to
■exclude an alien. Their Lordships cannot assent to the proposition that an alien
refused permission to enter British territory can, in an action in a British Court, compel
the decision of such matters as these, involving delicate and difficult constitutional
■questions affecting the respective rights of the Crown and Parliament, and the relations
of this country to her self-governing colonies. When once it is admitted that there is
no absolute and unqualified right of action on behalf of an alien refused admission to
British territory, their Lordships are of opinion that it would be impossible upon the
facts which the demurrer admits for an alien to maintain an action. Their Lordships,
therefore, do not think it would be right on the present appeal to express any opinion
upon the question which was elaboratelj^ discussed in the very learned judgments
delivered in the Court below— viz., what rights the executive government of Victoria
has, under the constitution conferred upon it, derived from the Crown. It involves
important considerations and points of nicety which could only' be properly discussed
when the several interests concerned were I'epresented, and which may never become
of practical importance." (1891, App. Cas. 282.)

For further discussion of the right of the Crown to exclude aliens, see an article on
" Alien Legislation and the Prerogative of the Crown," by T. C. Haycraft, Law
Quarterly Review, 1894, p. 165 ; and an article in the Weekly Notes (N.S.W.), 26 Sept.,
1891.

Restrictive Immigration Laws. — In 1855 the Legislative Council of the newly
erected colony of Victoria led the way in the passage of a number of laws intended to
restrict Chinese immigration, which commenced in 1854, when the fame of the gold
diggings of Victoria began to attract thousands of Chinamen to that colony. The
Victorian Council passed a bill, which was assented to by the Governor, " to make
provision for certain immigrants." The substance of the law was that no ship should
bring to a Victorian port more passengers, being Chinese immigrants, than in tlio
proportion of one person to every ten tons of the tonnage of such ship, under a penalty
of £10 for each passenger in excess of such proportion. On the arrival of a ship in any
port of Victoria, with Chinese immigrants on board, the master was required to pay to
the Collector of Customs a tax of £10 for every such immigrant. The money so collected
was to be invested by the Government to form a fund for the relief, support, and
maintenance of such immigrants. Provision was made for the registration of such
immigrants, on their arrival in any district or place to which they proceeded. This and
other immigration laws were consolidated in 1865.

Similar legislation was adopted in New South Wales in 1861. Her Majesty was not
advised to disallow any of these Acts, although the Colonial Secretary remonstrated, and
declared "that exceptional legislation, intended to exclude from any part of Her
Majesty's dominions the subjects of a State at peace with Her Majesty, is highly
objectionable in principle." (Lord Carnarvon's Despatch to Governor Cairns, 27th
March, 1877.) Those Acts were subsequently repealed, to the satisfaction, it is said, of

^211.] POWERS OF THE PARLIAMENT. 625

Her Majesty's Gtovemment ; but they were eventaally sncceeded by legislation of a more
drastic character adopted in all the Australian Colonies, in order to repel the Chinese
invasion.

In 1876 the Queensland Parb'ament passed a bill to amend the Gold Fields Act of
1874, so far as it related to Asiatic and African aliens, and to demand an increased
license fee from such aliens, with a view to discouraging excessive immigration.
<TOvei-nor Cairns considered that this bill Mas one of an extraordinary nature, which
might possiblj- involve a breach of national comity bj' restraining Chinese immigration
into Queensland, and that as such it was contrary to the treaty of Tien-Tsin and the
Convention of Pekin of 24th Octolier, 1860. Accordingly he reserved the bill for the
signification of Her Majesty's pleasure. The Queensland Ministry protested against the
reservation, and in a minute to the Governor expressed the opinion that it was of the
utmost importance that the authority of the Colonial legislatures to pass laws upon all
subjects whatever which they might think necessary for the good government of the colony
should be recognized and upheld, and that no other limit to that power should be
-admitted, than that which was imposed by the royal instructions to the (iovemor. They
thought that to go beyond those instructions, or to allow the unusual character of
proposed legislation, not forbidden by them, as a sufficient ground for not giWng
immediate effect to the wish of the legislature, would be of serious consequence to the
independence and freedom of Parliament. (Todd's Pari. Gov. in Col. 2nd ed. p. 188 )

In a despatch, dated 26th March, 1877, Earl Carnarvon expressed his approval of
the Governors conduct, and of the reasons which had actuated him. For these and
other reasons, although he was most unwilling even to appear to infringe upon the
privileges of self-government enjoyed by the inhabitants of Queensland —he had been
unable to advise the Queen that this bill should receive the royal assent in its present
shape.

During the session of 1877 the Queensland Legislature passed another Act to
regulate the immigration of Chinese and to prevent them from becoming a charge on the
colony. A poll tax of £10 was imposed on every Chinese immigrant, to be refunded
to him if he left the colony within three years without hanng committed any criminal
offence, and without having received charitable relief from any public institution. This
Act was not disallowed. The Act of 1877, amended by another Act passed in 1878, was
found insufficient to restrict the objectionable immigration. In 1884 the Act of 1877 was
Amended by reducing the number of Chinese passengers that might be brought into
Queensland waters to one for every fifty tons of registere<l tonnage, by increasing the
sum payable on arrival to £30, and bj' repealing the provision for the repayment of the
poll-tax on departure within three years. " The effect of the law of 1884 has Ijeen that
the number of Chinese arriving in Queensland by sea has been in each year somewhat
less than the numl^er of those departing. The easy means of transit by land between
the various Australian colonies, however, renders it impossible to exercise any effective
control over their migration across the borders of the colonies." (Todd's Pari. Gov. in
C3oL 2nded. p. 191.)

In 1879 an Anti-Chinese Influx Bill, containing prohibitions and restrictions similar

to those of the Queensland law then in force, was passed by the Legislative Assembly of

New South Wales, but rejected b\- the Legislative Council. In 1881 a similar bill was

re-introduced and passed by both Houses. In the same jear the Parliament of Victoria

again resorted to legislation in order to arrest the influx of Chinese. Vessels were not

allowed to introduce into any Victorian port more than one Chinaman per 100 tons of

tonnage, and a poll-tax of £10 was imposed on each immigrant on his landing. In April,

1888, a Chinaman, Chun Teeong Toy, arrived in the port of Melbourne on board the British

"hip Afghan. The Collector of Customs considered that the Afghan had brought a

rger number of Chinese than was allowed by law ; he refused to allow any of them to

ud, or to accept the poll-tax of £10 each. Chim Teeong Toy brought an action against

ae Collector in the Supreme Court of Victoria, which decided that the action of the

626 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-xxvii.

Government in preventing the landing of Chinese prepared to pay the prescribed poll-tax
was illegal. The Victorian Government appealed from this decision to the Privy
Conncil, which reversed the judgment of the Victorian Court, and held (1) that the
Collector of Customs was under no legal obligation to accept payment, whether tendered
by the master on behalf of any such immigrants, or tendered by or for any individual
inmiigrant ; (2) that, apart from the Act, an alien has not a legal right, enforceable by
action, to enter British territory. (Chun Teeong Toy v. Musgrove [ 1 89 1 ], App. Cas. 272. )■
An intercolonial Conference was held in June, 1888, at which the Governments of
New South Wales, Victoria, South Australia, Queensland, Tasmania, and Western
Australia were represented. The Chinese inmiigration question was considered, and the
following resolutions were adopted as embodying the views of the majority of the
colonies : —

(1.) That in the opinion of this Conference the further restriction of Chinese

immigration is essential to the welfare of the people of Australasia.
(2. ) That this Conference is of opinion that the desired restriction can best be
secured through diplomatic action of the Imperial Government and by
uniform Australasian legislation.
(3.) That this Conference resolves to consider a joint representation to the
Imperial Government for the purpose of obtaining the desired diplomatic
action.
(4.) That this Conference is of opinion that the desired Australasian legislation
should contain the following provisions : —

(a) That it shall apply to all Chinese, with specified exceptions.
{h) That the restriction should be by limitation of the number of
Chinese which any vessel may bring into any Australasian
port, to one passenger to every 500 tons of the ship's burthen,
(c) That the passage of the Chinese from one colony to another,
without the consent of the colony which they enter, be made a
misdemeanour.

Some of the colonies at once adopted legislation in accordance with the resolutions
arrived at. In Victoria an Act was passed providing that no vessel should enter any
Victorian port having on board more than one Chinaman for every 500 tons of the
tonnage of such vessel. Any Chinese who should enter Victoria by land, without first
obtaining a permit in writing from some person to be appointed by the Governor in
Council, was declared guilty of an offence against the Act, and made liable on conviction
to a penalty of not less than £5 nor more than £20, and also, upon the warrant of tiie
Commissioner of Trade and Customs, to be removed or deported to the colony from
whence he came. (Chinese Immigration Restriction Act, 1888, sec. 9.)

In about 1895 danger began to be apprehended from the increasing immigration of
Indians, Afghans, and other Asiatics, many of whom were British subjects. At an
intercolonial Conference held at Sydney in March, 1896, at which all the Australian
colonies except Western Australia were represented, it was unanimously re-solved that
the provisions of the Chinese Immigration Restriction Acts should be extended to all
coloured races. During 1890, accordingly. Coloured Races Restriction Bills were passed
in New South Wales, South Australia, and Tasmania, and an Asiatic Restriction Bill in
New Zealand. These Bills were reserved for the signification of the Queen's pleasure,
but did not receive Her Majesty's assent. The presence of the Australian Premiers at
the Jubilee celebrations in London in 1897 afforded Mr. Chamberlain an opportunity of
explaining the views of the Imperial Government as to this kind of legislation. He
expressed entire sympathy with the determination of the Australian colonies to prevent
the influx of people who were alien in civilization, in religion, and in customs, and who
interfered with the legitimate rights of the existing labouring population. Such an

§211. J POWERS OF THE PARLTAMENT. 627

influx mnst be prevented at all hazards ; but he asked the Premiers to remember the
traditions of the Empire, which make no distinctions of race or colour, and pointed out
that the exclusion of all Her Majesty's Indian subjects, or even of all Asiatics, would
be so offensive to those people that it would be most painful to Her Majesty to sanction
it. He therefore urged them to base their prohibitive legislation, not upon race or
colour, but upon the really objectionable characteristics of the immigrants legislated
against ; and he instanced, as a type of legislation which the Imperial Government
would think satisfactory, the Immigration Restriction Act of 1897 recently passed in
Natal — a measure which was being found adequate in that colony to meet the same
evil.

The Natal Act defined six classes of " prohibited immigrants." The first and most
important class consisted of persons who, when asked to do so by an authorized officer,
should fail to " write out and sign, in the characters of any language of Europe" an
exemption application in the prescribed form. The other classes of " prohibited
immigrants" were : — (2) Paupers, or persons likely to become a public charge ; (3) idiots
or insane persons ; (4) persons suffering from a loathsome or contagious disease ;
(5) persons convicted within two years of a crime involving moral turpitude, and not being
merely a political offence ; (6) prostitutes, and persons living on the prostitution of
others. Subject to certain exemptions and exceptions, the immigration of a " prohibited
immigrant " was forbidden ; any immigrant contravening the Act was made liable to
removal from the colony, and upon conviction to be sentenced to six months' imprison-
ment ; which imprisonment should cease for the deportation of the offender, or if he
should find sureties for his departure within one month. Masters and owners of vessels
illegally landing immigrants were made liable to heavy penalties.

Accordingly a Bill, almost identical with the Natal Act, was introduced in the
Legislative Assembly of New South Wales. It was amended in the Council by the
omission of all the classes of " prohibited immigrants " except the first — which was
relied on as the real safeguard against the immigration of Asiatic and other coloured
races. In this form it became law, as the Immigration Restriction Act, 1897. In
Victoria a similar Bill was introduced, but failed to pass owing to disagreement between
the two Houses. In Western Australia in 1897, in Tasmania in 1898, and in New
Zealand in 1899, Immigration Restriction Acts, almost identical with the Natal Act,
were passed.

Immigratiox IX Canada. — In Canada, the Dominion and the Provinces have
concurrent power to legislate concerning immigration, but any law of a Province with
respect to that subject is v^oid if it be repugnant to Dominion Legislation. In 1878 the
Provincial legislatures of British Columbia passed an Act " to provide for the better
collection of Provincial taxes from Chinese." It required every Chinaman, above the
age of 12 years, to take out a quarterly license, for which he had to pay ten dollars in
advance. This license fee was to be in lieu of the ordinary taxation payable by the
people generally for public purposes. Any Chinaman failing to take out the license was
liable to a severe penalty. Nominally a tax Act, it was in realitj', like the first anti-
Chinese Act passed in Queensland, intended to restrict Chinese immigration. An
action was commenced in the Supreme Court of British Columbia to test its validity.
The judgment of the Court was delivered by Mr. Justice Gray, who held that the Act
was beyond the power of the Provincial legislature ; that it was at variance with the
treaty obligations of Great Britain and China ; that it related to a matter affecting
trade and commerce, which belonged to the Dominion Parliament ; and that therefore
it was unconstitutional and void. This Act was afterwards disallowed by the Governor-
General in Council, who considered it inadN-isable to permit an Act which had been
pronounced ultra rires to remain on the statute book. (Todd's Pari. Gov. in Col. 2nd
ed. pp. 194 and 557.)

Undiscouraged by the failure of its first attempt to grapple with the Chinese problem,
the legislature of British Columbia, in 1884, passed another Act regulating the Chinese

G28 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-xxvii.

population of the Province. In 1885 Wing Chong, a Chinaman, was convicted and
fined before a magistrate for not having a license under tlie Act of 1884. He obtained
a writ of certiorari for the removal of the case to the Supreme Court of British Columbia ;
and Crease, J., one of the Judges of that Court, quashed the conviction on the ground,
inttr alia, that the Act was vltra vires the legislature of the Province It appears that
there could be no appeal from this decision to the full Court ; but on the ground of the
great public importance of the question, special leave to appeal to the Privy Council
was asked for and granted. The appeal, however, was not prosecuted. (Reg. v. Wing
Chong, 1 Brit. Columb Rep., Partii., p. 150; Wheeler, C.C. 122.)

Yielding to the representations of the Provincial Government as to the necessity of
central legislation, the Dominion Government at length appointed a royal commission
to enquire and report on the question in all its bearings. As the result of this report
the Parliament of the Dominion in 1885 passed an Act to restrict and regulate Chinese
immigration into Canada, the principal features of which were: — ( 1 ) A poll tax of $50
on each Chinaman landing ; i2) No vessel to carry more than one Chinaman to every
50 tons of its tonnage ; (3) Every Chinaman wishing to leave Canada with the intention
of returning, on giving notice of such intention at the port of departure and surrendering
his certificate of entry or of residence, to receive, on payment of a fee of one dollar, a
certificate of leave to depart and return. In 1891, there were about 109,127 Chinamen
in Canada, of whom 8900 were located in British Columbia. (Todd. Id. p. 195.)

Immigration in the United States of America. — Congress has not been assigned
express power to deal with immigration ; nevertheless it has been held that the
Government of the United States, through the action of its legislative department, can
exclude aliens from its territory.

Jurisdiction over its own territory, to that extent, is an incident of every
independent nation. It is a part of its independence, and one method whereby it is
enabled to maintain its independence from control of another power. " The jurisdiction
of the nation within its own territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself. Any restriction upon it, deriving
validity from an external source, would imply a diminution of its sovereignty to the
extent of the restriction, and an investment of that sovereignty to the same extent in
that power which could impose such restriction." (Chief Justice Marshall in The
Exchange v. McFaddon, 7 Cranch, 136, cited and approved in the Chinese Exclusion
Case, 130 U.S. 604. Baker, Annot Const, p. 17.)

In the United States of America similar difficulties have been experienced in dealing
with undesirable immigrants, such as Chinese, and there have been several conflicts
between State laws and Federal laws with respect to that subject. In Ling Sing v. Wash-
burn, 20 Calif. Rep 534, and in The People v. Raymond, 34 Calif. Rep. 492, legislation
directed by the State of California against tlie Chinese was pronounced unconstitutional
by the Supreme Court of that State. In tiie case of Baker v. The City of Portland
(U.S.) L T. 18 Oct., 1879, p. 403, the question aro.se as to the validity of an Act of the
State legislature in prohibiting the employment of Chinese labourers on public works.
The circuit court of the United States, in the Oregon district, pronounced the law
unconstitutional on the ground that a treaty between the Federal Government and a
foreign power was the supreme law of the land, which the courts were bound to enforce,
and that an individual State could not so legislate as to interfere with the operation of a
treaty or to limit the privileges guaranteed thereby. (Todd's Pari. Gov. in Col., '2nd ed.
p. 196.)

In 1879 Congress passed an Act to discourage Chinese immigration, by restricting
the number of Chinese which might be brought from China to the United States in a
single voyage, to fifteen persons. The president, Mr. Rutherford B. Hayes, vetoed tiie
))ill, on the ground that it was repugnant to the terms of a treaty between the United
States and China, and that the power of modifying treaties was not vested in Congress,

§§ 211 213.] POWERS OF THE PARLIAMENT. 629

but belonged to the Executive. In 1880 a new treaty was negotiated between the
United States and China. By this treaty it was agreed that the United States
(jovemment should be allowed to regulate the admission of Chinese labourers at its
discretion, but not to forbid it altogether. In March, 1888, a fourth treaty was entered
into between the United States and China, which provided that thereafter no Chinese
labourer should be entitled to enter the States. This, like other treaties, was subject to
the ratification of the Senate. The Senate amended it by adding a proviso that Chinese
labourers formerly resident in the United States should not be allowed to return thither
whether they held certificates of former residence or not. The Chinese Government
refused to accept this amended treaty. A bill was then brought into the House of
Representatives containing a prohibition similar to that added to the treaty by the
Senate. It was passed without a division, agreed to by the Senate, and ultimately
assented to by the President on 1st October, 1888.

Assisted Immigration. — The Parliament wiU have power, not only to exclude
undesirable aliens, but also to facilitate the introduction of industrious and respectable
immigrants, likely to become workers, producers, and consumers within the Common-
wealth. Assisted immigration, which at one time was the policy of most of the
Australian colonies, has within the last few years been very sparingly resorted to.

§ 212. " Emigration."

Emigration contemplated by this sub-section would probably mean the inspection,
supervision, and registration of departures from the Commonwealth. It might also
authorize legislative arrangements to be made for the return of foreign labourers to their
respective countries, after the expiration of their respective terms of ser\'ice.

51. (xxviii.) The influx of criminals'^^ :

Historical Note. — At the " Convention" which met in Sydney in 1883, Sir Samuel
Griffith's original resolution for the establishment of a Federal Council proposed to give
that body power to make laws with respect to the " prevention of the influx of
criminals." (See p. Ill, impra.) That power was accordingly given by the Federal
Council of Australasia Act, 1885.

In the Bill of 1891 the sub-clause was passed in its present form ; and it was adopted
without debate by the Convention of 1897.

§ 213. ''Influx of Criminais."

Exclusion of CRmiXALS. — This sub-section is intended to embrace the class of
cases covered by 18 Vic. Xo. 3, an Act to prevent the "Influx of Criminals" into
Victoria passed by the Legislative Council and assented to by the Lieutenant-Governor
on 16th November, 1854. That Act came into force at the beginning of the rush to the
goldfields, when swarms of convicts and ticket-of-leave-men from other settlements
invaded the colony and became a nuisance and menace to its peace and welfare. Any
person who had been found guilty of any capital or transportable felony, in the United
Kingdom or in any British possession, and who came to Victoria after the passing of
the Act, was made liable to be apprehended and taken before two justices. Such
justices were authorized, on proof that such person came to Victoria contrary to the
Act, to convict him for the offence of so doing, and at their discretion they could either
take bail that he would leave the colony within seven days, or cause him to be conveyetl
in custody to the country from whence he came, or sentence him to hard labour on the
roads or other public works of the colony for a period not exceeding three years. Persons
harbouring or concealing such convicts, and masters of vessels bringing them to Victoria,
were liable to punishment. This law was re-enacted by the Parliament of Victoria

fiSO COMMENTARIES ON THE CONSTITUTION. [Sec. 61 -xxviii.

under the new Constitution in 22 Vio. No. 68. It now appears in the Victorian Crimes
Act, 1890, ss. 370-385.

The scope and validity of this Act were considered by the Supreme Court of Victoria
in the case of Ryall v. Kenealy (1869), 6 W.W. and a'B. (L) 193. John Kenealy had, in
1865, been convicted in Cork of treason felony, for which he was transported to Western
Australia for ten years. In 1869 he received a free pardon from the Crown ; he was
discharged from custody, left Western Australia and proceeded to Victoria, arriving in
the port of Melbourne 6th July, 1869. Immediately on his arrival he was arrested under
the Influx of Criminals Act, convicted, and ordered to enter into recognizances to leave
the colony within seven days. A case was stated for tlie opinion of the full court.
Against the convictioji it was argued (1) that the Act did not create an offence, (2) that
the defendant was not prohibited from coming to Victoria, (3) that the Act only applied
to convicts whose term of imprisonment had expired, (4) that the free pardon of the
Crown exempted the defendant from the prohibition, and restored him to the position
of a new man without disability, (5) that the Act could not control or prejudice the
Queen's prerogative, and did not affect any pardon granted by virtue of the preroga-
tive. During the argument no attention seems to have been drawn to the words of the
Act enabling the justices, as an alternative, " to cause the said person to be conveyed in
custody to the country or po.ssession from whence he came." The constitutionality of
that part of the Act was not in issue, as the defendant had not been ordered to be so
conveyed out of the colony. Had that been done the conviction would, according to
the principle established in Gleich's case and in Ray v. MacMackin, have been bad.

" We now come to the last objection, tiiat relating to the prerogative. It is said
that the Act interferes with the Roj'al prerogative. To that several answers have been
given during the argument. One is, that the Act is descriptive merely as regards the
persons who are to be affected by it. It only describes a fact, just as if it referred to
persons born in a particular country, or marked in a particular manner. It simply- says
that persons found guilty of a felony cannot come here. The pardon cannot obliterate
that fact, although it raaj^ remove the effects of the conviction. So it may be lil^ellous
to say tliat a person is a thief who has been tried and found guilty of a larcen}', and
pardoned ; but it would not be libellous to say that he had been found guilty of it. A
pardon relates to past offences, not to future ; and the offence in this instance was
subsequent to the pardon. Giving, however, the fullest force to the effect of the pardon,
in this instance the prerogative of the Crown is subject to the enactment of the
Legislature. The Crown, as one of the three branches of the Legislature necessary to
pass this Act, has assented to its being passed. . . . We are, therefore, bound to
assume that by assenting to the Act the Royal prerogative was to ))e exercised, subject
to the provisions of the Act so assented to. The authority in 5 Espinasse, Dover v.
Maestaer, is conclusive on the point. It may be that the prerogative can only be taken
away by express words ; yet it can be affected by the fair and necessary intendment from
an Act. The Crown is at liberty to refuse its assent to a measure tliat may interfere,
not merely to one that must interfere, with the prerogative ; and as this Act applies not
merely to expirees, but to conditionally and to absolutely pardoned men, it might so
interfere, and the Crown might have refused its assent. But it did assent ; and the
sound conclusion is, that in assenting to it the Crown expressed an intention that tlie
Royal prerogative should be exercised subject to it. It is said that this construction
would put a pardoned man in a worse position than an expiree. Perhaps so. But we
cannot entertain such an objection. A person who takes a pardon takes it subject to
a,U consequences and limitations " (Per Stawell, C.J., in Ryall v. Kenealy, 6 W., W.,
and a'B. pp. 206-7.

" Tliis Act, 18 Vic. No. 3, is the third enactment on the subject of the influx of
criminals. The first was passed in 16 Vic, and the matter was referred home. The
nature of the legislation was so different from anything affecting the otlier portions of
Her Majesty's dominions that for some reasons it did not become law. It was re-enacted
in nearly similar words, and again sent home. The law officers who advised the Colonial
Office were vigilant, if not jealous, for the Royal prerogative, and were disinclined to
its becoming law ; but they were disinclined to reject it, and it was therefore allowed to
pass. No objection was taken to tlie inability of the Legislature to pass such a law,
and if such a disability existed tiiere is reason to believe it would have been pointed out.
Since then the Act has been passed again and again. It is therefore part of the law of
the British Elmpire — different from what exists in other parts of the empire — and subject
to this law the Royal pardons must be issued. If a person disregarded the legislative

§ 2U.] POWERS OF THE PARLIAMENT. 631

prohibition which the Queen has assented to. and labours under the disability referred
to in this Act, he comes here bearing a pardon giving him emancipation in any other
part of the globe but this country. He takes the pardon subject to the contract
between the Queen and the Parliament and to his inability to come here." (Per
Barry, J., id. p. 208.)

51. (xxix.) External affairs'" :

Historical Xote. — In the Bill of 1891 the sub-clause extended to "External
affairs and treaties ;" and at the Adelaide session of the Convention, 1897, the same
words were adopted. At the Melbourne session a suggestion of the Legislative Council
of Xew South Wales, to omit the words "and treaties," was agreed to. (Conv. Deb.,
Melb., p 30, and see Historical Xote, Clause T. of Constitution Act.)

§ 214. ''External Affairs."

SiGXiFiCAXCE. — Considerable speculation has been alreadj- indulged in by consti-
tutional writers as to the meaning and possible consequences of this grant of power over
external affairs. It may hereafter prove to be a great constitutional battle-groimd. Mr.
A. H. F. Lefroy, the well-known Canadian authority, says "it looks as though the
Imperial Parliament intended, so long as the Commonwealth Bill should remain
unrepealed, to divest itself of its authority over external affairs of Australia and commit
them to the Commonwealth Parliament." (Law Quarterly ReWew, July, 1899, p. 291.)
Professor W. Jethro Brown (University of Tasmania) describes the power to legislate
upon external affairs as a new departure of doubtful significance. (L&vr Quarterly
Review, January, 1900, p. 26.) Professor W. Harrison Moore (University of Melbourne)
is of opinion that this power is a somewhat dark one, and suggests the view that it may be
used " to establish the doctrine that, in the Courts of the Commonwealth, Commonwealth
laws, like Acts of the Imperial Parliament, cannot be impugned on the ground that they
reach beyond local affairs ; in other words, the rule against laws ' intended to operate
exterritorially ' will within the Commonwealth be a rule of construction only, and not a
rale in restraint of power." (Law Quarterly Review, January, 1900, p. 39.)

It must be conceded that the expression " external affairs" is singularly vague, but
it is submitted that it cannot be construed in the wide and far-reaching manner
suggested by the learned gentleman whose views are quoted. There is nothing in it
indicative of an intention of the Imperial Parliament to divest itself absolutely of all
authority over the external affairs of Australia and to commit them exclusively to the
Parliament of the Commonwealth, any more than it divests itself absolutely of anj' other
of its supreme sovereign powers. The same section which grants legislative power to
the Federal Parliament over "external affairs" grants legislative power over naval and
military defence, copyright, coinage, influx of criminals, naturalization, and other
matters. If there is any final abandonment of Imperial authority over one of these
matters there must be a similar abandonment with respect to all. Yet in Wew of the
application of the Colonial Laws Validity Act to the interpretation of the Constitution it
could not be successfully contended that any such divestment is intended. The other
view, as we understand it, is that this grant of power may be used to give extra-
Commonwealth operation to laws of the Federal Parliament founded on other gi-ants ; in
other words, that a Federal law relating, say, to immigration or naturalization, and
giving an extra-Commonwealth effect to some of it« proWsions, cannot be impugned,
aince the Federal Parliament has jurisdiction over " external affairs." That %-iew also,
it is submitted, is not tenable. Sub-section 29 contains a distinct and independent grant
of power. It is not intended and it cannot be used to enlarge, or qualify, other distinct
and independent grants.

The expression " External Affairs " is apparently a very comprehensive one, but it
has obvious limitations. As already pointed out, it can hardly be intended to confer

632 COMMENTARIES ON THE CONSTITUTION. Sec.51-xxix.

extra-territorial jurisdiction ; where that is meant, as in other swb-sections, it is distinctly
expressed. It must be restricted to matters in which political influence may be exercised,
or negotiation and intercourse conducted, between the Government of the Commonwealtii
and the Governments of countries outside the limits of the Commonwealth This power
may therefore be fairly interpreted as applicable to (1) the external representation of
the Commonwealth by accredited agents where required ; (2) the conduct of the business
and promotion of the interests of the Commonwealth in outside countries, and (3) the
extradition of fugitive offenders from outside countries.

External Represkntation — From the earliest period of colonial history, British
colonies and settlements have been represented in England by Agents residing in London,
whose duties were to convey to the home Government the views of the colonists on local
questions ; to give information and make suggestions concerning the defences of the
colonies against foreign aggression ; to encourage emigration from the mother country
into the colonies ; and to advance the trading and commercial interests of the commu-
nities on whose behalf they were employed. The designation " Agent-General " is said
to have been first applied to the representatives of the New England colonies, prior to
the declaration of American Independence. In modern times the duties of the office
have been considerably enlarged, and its value, dignity, and usefulness have been
corresponding!}' enhanced. Agents-General have had to superintend the conduct of
important financial operations ; to negotiate the flotation of public loans, and to make
all the incidental ari-angements. They have had to launch gigantic contracts, involving
millions of money. In controversies that have arisen between the colonies and the
Imperial Government on constitutional, commercial, postal, telegraphic, naval, military,
and diplomatic questions, they have had to act as trusted and responsible envoys on
behalf of their respective colonies.

Indeed the Agent-General's Department for each colony is now so much used, and
is found so effective as a medium of official inter-communication, that a considerable
amount of important work, which was formerly required to be done through the
Governor, is now performed through the less formal but prompter agency. This
expansion and differentiation of functions has developed without any material alteration
in constitutional law, and without any desire or intention to supplant the Governor as
the organic connecting link between the mother countrj' and her colonies. The
Governor still discharges those duties imposed upon him by his commission and by the
Royal instructions. The Agent-General's office is used mei'ely as a subsidiary means of
communication and representation, and especially is it entrusted with matters springing
out of the wider relations and increasing business responsibilities of the colonies. As
such, it is unhampered by formality, and is extremely valuable by reason of the frank,
confidential and friendly relations which are now established between the Agent-General
for each colony and the Secretary of State for the colonies.

Another important feature in connection with the growth of the colonial Agency-
General is this — that of late years there has been an organized co-operation among the
officers representing the different colonies, in every matter of common concern and
common interest, and that spirit of co-operation has so welded them together that they
now practically constitute a united deputation, present a solid and unbroken front, and
speak with one voice to the Secretary of State for the colonies on all questions which
they are authorized by their principals to discuss.

Some years ago a discussion took place in official circles as to the exjjediency of
changing the title and improving the status of the Agent-General. In an official
communication to the Government of New Zealand dated 12th Februar}', 1879, Sir
Julius Vogel, the Agent-General for that colony, suggested that Agents-General should
be called Resident Ministers in England for their respective colonies. An Agent-
General's rank, he thought, should be equal to that of an ordinary Minister of the Crown,
but, like an Ambassador, without the necessity of retirement with a government; he
should be in the position of an Ambassador, making due allowance for the fact that he

§214] POWERS OF THE PARLIAMENT. 633

represented a colony forming an integral part of the Empire, and not an independent
State. Sir Archibald Mickie, at one time Agent-General for Victoria, was of opinion
that the designation " Agent-General" was a mistake, as it led to misapprehension of
the true nature of his position. On several occasions he was mortified to find that some
people in England were under the impression that an Agent-General was the head of a
general commercial agency of a most enlarged description. On one occasion, it is said,
he ordered the words "Agent-General" to be inscribed in gold letters on his office blinds.
The painter substituted the words " General Agent,"' l)elie\nug that that was the correct
and intended phrase. (Todd's Pari. Gov. in Col. 2nd e<\. 236. )

In November, 1879, the Government of Canada appointed Sir Alexander Gait to
represent the Dominion in England. With the consent of the Imperial Government his
appointment carried with it a more definite position, larger powers, and the title of
'* High Commissioner and Resident Representative Agent of the Dominion of Canada in
the United Kingdom." The principal duties annexed to the office were attention to
finance, immigration, trade and commerce, naval and military affairs, territorial
questions, and diplomacy. (Todd's Pari. (iov. in Col. 2nd ed. p. 2.35. )

The subjoined statement shows the expenditure in connection with the offices of
Agent-General for the various Australian colonies : —

AGENCY-GENERAL DEPARTMENTS.

PRESENT ANNUAL COST.

—

New South
Wales.

\lctoria.

South Western chiw^nslanH
AustraUa. Australia j <i»«*"8lan1-

Tasmania.

Ordinary Maintenance

1
£5.664 £3,5(X>

£4,987 £4,008 £2,758

£1,095

The Federal Parliament will not have power to abolish the separate Agencies-
General of each colony, but it will be able to create a new department similar to that of
the High Commissioner for Canada, and to authorize the appointment of a High
Commissioner for Australia, who would, in time, necessarily absorb and perform all the
important work relating to public finance, trawle and commerce, post and cable, naval
and military defence, diplomatic representation and inter-communication, now done by
the several Agents-General. The latter would be denuded of their prestige and most of
their duties, and there would be ao necessity or justification for the continuance of the
old system. The Agent-Generals office for each State, if not quite abolished, could be
converted into that of a " General Agent'" — a term so repugnant to the sensibilities of
some of its past occupants.

CoMMKRCiAL TliEATiKS. — It is a rccognized principle of international law that
sovereign States only can enter into commercial treaties and conventions one with
another ; that one sovereign Stat« v<-\]l not enter into such a compact with a colony or
dependency of another, except with the sanction or through the intervention of the
sovereign State to which the colony and dependency belongs ; that the privileges and
advantages of such a compact do not extend to the colonial dependencies of the
contracting powers, unless the\" are expressly named or provided for in the agreement.
(Todd's Pari. Gov. in Col. 2nd ed. p. 265.)

It has been the practice of the Imperial Government, in entering into these treaties,
to make them applicable to the British colonies, possessions and dependencies enjoying
responsible government, onlj' with the consent of the colonial legislatures.

''In 1877 the Italian and French governments, ha\ang notified the British
Government of their intention to terminate the existing commercial treaties between
themselves and Great Britain, and propositions being entertained for the negotiation of
fresh treaties. Her Majesty's Secretary of State for Foreign Affairs communicated with

G34 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxix.

the Colonial Secretary in reference to the inclusion of the colonies therein, In reply,
Lord Carnarvon intimated the propriety of consulting the governors of colonies
possessing responsible government in reference to the terms of the proposed treaties
before deciding upon the same. He accordingly addressed a circular despatch to the
principal colonial governments, transmitting a copy of a draft article, for insertion in
future treaties of commerce, applying the same to the British colonies, but with tlie
understanding that no treaty witli a foreign power shall include or extend to any British
colony which ma}' desire to be exempted from the operation of the same. This article
is as follows : — ' The stipulations of the present treaty shall be applicable to the colonies
and foreign possessions of the two high contracting parties named in this article.'
(Here insert the names of the colonies, &c., to be included in the treaty.) They ' shall
also be applicable to any colony or foi-eign possession, &c., not included in this article
upon the conclusion by the two high contracting parties of a supplementary convention
to that effect,' within a specified time after the ratification of such treaty." (Todd,
Pari. Gov. in Col. 2nd ed. p. 266.)

" In a new Anglo-French treaty, agreed upon in 1882, the British colonies were not
included. This led to grave remonstrances on behalf of certain of the principal colonies.
In reply the Earl of Kimberley (Colonial Secretary) intimated that the French
government were unwilling that the colonies should participate in the advantages of the
new tariff" arrangements, because of the high duties placed on the importation therein of
French goods, and because of ' the customs autonomy of some of the colonies, and the
inability of Her Majesty's government to bind them.' In 1880 and 1881 correspondence
passed between Sir A. T. Gait, on behalf of Canada, and the colonial and foreign offices,
which resulted in the Imperial Government consenting that the. Government of Canada
should hereafter be relieved from the obligation of any new treaties with foreign powers to
which objection was taken ; that Canada should have the option of acceptance or
refusal." {Id pp. 267-8.)

Negotiation of Commkrciai. Tre.\ties. — From time to time the Governments of
British colonies have endeavoured to induce the Imperial Government to modify the
rule according to which the negotiation of treaties with foreign powers should he
conducted by ambassadors accredited by the Crown and responsible to the British
Parliament, and to concede to the colonies the right to activel}' participate in the
conduct of such negotiations, so far as they relate to commercial matters in which they
are specially interested. In the years 1871-3 a correspondence took place between the
Australian Governments and the Imperial Government with reference to a proposal that
the colonies should be alloAved to make reciprocal arrangements with foreign State.'.
The Imperial Government refused to waive the prerogatives and obligations of the
Crown in its international relations, but, as a concession, it agreed to secure the passage
of an Act through the Imperial Parliament allowing the Australian colonies to establish
intercolonial commercial reciprocity. The Australian Colonies Duties Act, 1 873, gave
full power to each of the colonies concerned to make laws imposing or remitting duties,
whether diflerenfial or preferential or otherwise, for or against one another. But it
retained the prohibition against the imposition of differential duties on goods imported
into the colonies from foreign countries, or from Great Britain. It also forbade the
levying of duties upon articles imported into Australia for the use of the Imperial army
or navy, and the levying or remitting of any duty contrary to or at variance with any
existing treaty between Her Majesty and any foreign nation.

The Government of Canada, however, continued to press its claim to direct partici-
pation in the conduct of negotiations for commercial treaties, and gradually the right
was acknowledged and conceded. In 1871 Sir John A. Macdonald, the Premier of
Canada, was appointed one of the plenipotentiaries to watch and represent the interests
of Canada in negotiations with the United States in reference to trade, commerce, and
fisheries.

In 1874 the Imperial Government agreed to allow Senator (ieorge Brown, of Canada,
to be associated with the British Minister at Washington, in his negotiations with the
Government of the United States for a treaty to promote reciprocal trade relations
between Canada and the United States. It was, however, subject to the undersUn<hng
that the Canadian Representative should not act independently, but that propositions
made by the Government of Canada should be previously submitted to the Secretary of

1214.] POWERS OF THE PARLIAMENT. G35

State for the Colonies. A draft treaty was agreed to by the British, Canadian, and
American Commissioners, and was recommended for ratification. It was approved by
the British Government, but failed to secure the sanction of the American Senate.

In 1879 the Imperial authorities permitted Sir A. Gait, as representing the Canadian
-Ciovemment, to share in the conduct of negotiations for improved commercial intercourse
between Canada, France, and Spain. (Todd's Pari. Gov. in Col. 2nd ed. 272. ) In 1883,
and again in 1888, Sir Charles Tupper, as High Commissioner, was allowed to act as
co-plenipotentiary in association with the British Ambassador in conducting commercial
negotiations with Spain. In 1888 he was allowed to act in a similar capacity in
negotiating with the United States. Sir Charles Tupper was similarly privileged in
1892-3 in assisting to discuss proposals respecting a reciprocal customs tariff arrange-
ment between France and Canada. (Todd's Pari. Gov. in Col. 2nd ed. 268.)

In 1890 permission was given to the Governments of the West Indian colonies to
send delegates to advise the British Minister at Washington on commercial questions
and proposed reciprocal trade between those Islands and the United States. (Todd's
Pari. Gov. in Col. 2nd ed. p. 273.)

These precedents serve to illustrate the way in which the power given to the
Parliament of the Commonwealth to deal with "external aCFairs" may be exercised. It
may pass laws authorizing the negotiation of commercial treaties — of course through the
direct agency of the Imperial Government, assisted and advised by the representatives
of the Commonwealth ; and it may afterwards, like the Senate of the United States,
either ratifj' or refuse to confirm them.

Interxatioxal Extradition'. — Extradition is the surrender or delivery of fugitives
from justice by one sovereign State to another. It is justifie<l bj' the principle that all
civilized communities have a common interest in the administration of the criminal law
and in the punishment of wrongdoers. As, however, it involves an invasion of the
right of sanctuary and asjlum generally extended, in past ages, by humane and
benevolent governments to refugees and exiles from coimtries ruled by despots,
extradition, where agreed to, is surrounded with safeguards and discriminating
exceptions. Extradition is a sovereign act. It can only be done at the will of the
sovereign government. A colony or dependency of an empire, such as ours, could not
of its own accord agree to surrender criminals to a foreign State. The right to do so is
not included in the ordinary police power of a colony or dependency ; the police power
relates only to internal concerns. Extradition involves intercourse with a foreign State,
and it can only be caiTied into execution by the treaty-making authority. (Holmes v.
Jennison, 14 Pet. 540, 569-574. Baker, Annot Const, p. 162.)

Extradition, where it is practised, is therefore generally founded on treat}' between
two sovereign States ; such treaty being, in the British Empire, ratified and enforced by
an Act of the Imperial Parliament, whilst in the United States a treaty made by the
President and ratified by a majority of three-fourths of the Senate has the force of law.
All recent extradition treaties between the British Government and foreign States are
made applicable to the colonies and foreign possessions of the two high contracting
parties.

The Imperial Extrarlition Act (1870), 33 and 34 Vic. c. 52, consolidated the law
then in force relating to the apprehension and surrender to foreign States of fugitive
oflFenders. It provides that where an arrangement has been made bj' Her Majesty with
any foreign State, respecting the surrender to such State of any fugitive criminals. Her
Majesty may, by Order in Council, direct that the procedure and machinery of the Act
should apph' in the case of such foreign State : that Her Majesty may limit the
ojwration of the Order, to fugitive criminals in specifietl parts of Her dominions, and
render it subject to such conditions, reservations, and exceptions as may be deemed
expedient. The schedule to the Act contains a list of the crimes for which a suspected
offender may be surrendered, subiect to the restrictions that no fugitive shall be

636 COMMENTARIES ON THE CONSTITUTION. [Sec. 51 -xxix

surrendered to a foreign State (I) for an offence of a political nature, or (2) unless
provision is made by the law of that State that he shall not, when surrendered, be
detained or tried in that State for any other offence committed prior to his surrender.
The Act, when applied by Order in Council, is made to extend to every British
possession, in the same manner as if, throughout the Act, the British possession were
substituted for the United Kingdom or England, as the case may require, but with the
following modifications : —

(1.) The requisition for the surrender of a fugitive criminal who is in or
suspected of being in a British possession may be made to the Governor
of that British possession by any person recognized by that Governor as
a consul-general, consul, or vice-consul, or (if the fugitive criminal has
escaped from a colony or dependency of the foreign State on behalf of
which the requisition is made) as the Governor of such colony or depen-
dency :

(2.) No warrant of a Secretary of State shall be required, and all powers vested
in or acts authorized or required to be done under this Act by the
police magistrate and the Secretary of State, or either of them, in
relation to the surrender of a fugitive criminal, may be done by th«
Governor of the British possession alone.

(3. ) A judge of any court exercising in the British possession the like powers as
the Court of Queen's Bench exercises in England may exercise the power
of discharging a criminal when not conveyed within two months out of
such British possession.

*' It is under the Imperial Act of 1870 that French escapees from the French settle-
ment of New Caledonia are dealt with. . . Upon receipt of a requisition from the
consul of France requiring the extradition of a person supposed to be in the colony,
accompanied by proof of the conviction of the person to be dealt with of an extradition
crime, and upon production of an affidavit stating that it is believed he is at large in the
colony, the governor, acting according to the powers given in England, issues his
warrant for the apprehension of the accused. Upon the arrest being made, the prisoner
is brought before the governor, who takes evidence upon oath as to the conviction of
the accused of a crime for which he may be extradited, and of his sentence not having
expired, and if satisfied upon these matters commits the prisoner to Darlinghurst gaol,
&c. ; the further proceedings being as prescribed by the Act of 1870." (Legal \ ear-
Book of Australasia, Article by W. J. Williams, Crown Solicitor for New South Wales.)

It is provided by the Extradition Act of 1870, s. 18, that where by any law or
ordinance, made by the legislature of any British possession, provision is made for
carrying into effect within such possession the surrender of fugitive criminals who are
in, or suspected of being in, such British possession, Her Majesty may, by the Order in
Council applying the Extradition Acts in the case of any foreign State, or by any
subsequent Order, either (1) suspend the operation of tlie Act or any part thereof,
within any such British possession, so far as it relates to such foreign State, and so long
as such law or ordinance continues in force there ; or (2) direct that such law or
ordinance, or any part thereof, shall have effect in such British possession with
or without modifications and alterations. Partly by virtue of this power and
partly by the British North Am. Act, 1867, sec. 132, the Imperial Extradition Acts are
suspended in Canada during the continuance of the Canada Extradition Act, 1877, and
Acts amending the same. With respect to extradition procedure generally and the
preliminary judicial investigation as to the criminality and identification of the fugitive,
necessary in order to give effect to extradition treaties, recourse is had, in Canada, to
the Canadian Act of 1877 as amended by subsequent legislation. (Todd's Par. (Jov.
Col. 2nd ed. p. 290. ) Similarly, the Commonwealth being a British possession within
the meaning of the Imperial Extradition Act, the Government of the Commonwealth
will, no doubt, hereafter contend that all negotiations and proceedings for the enforce-
ment of extradition treaties entered into by Groat Britain with foreign powers shall be
conducted under uniform federal legislation, passed partly pursuant to the power vested
in the Federal Parliament by this sub-section and partly pursuant to power conferred
by section 20 of the Imperial Act. Indeed, it would appear from the definition of tlie
term •' legislature " of a British possession, contained in section 2ti of the Imperial Act,

§ 215.]

POWERS OF THE PARLIAMENT. 637

that the Federal Parliament will have exclusive jurisdiction to exercise the power con-
ferred b\- section 20, since where there are local legislatures, as well as a central
legislature, " legislature" means the central legislature only. When such legislation is
adopted, requisitions for the surrender of fugitive criminals, within the limits of the
Commonwealth, will probably have to be made through the Governor-General of the
Commonwealth instead of through the Governor of the State in which they may be found.

51. (xxx.) The relations of the Commonwealth with the
islands-^^ of the Pacific :

Historical Xote. — This sub-section dates back to the "Convention" of 1883, when
the Federal Council Bill was drafted. Mr. Samuel Griffith's resolution in favour of a
Fefleral Council proposed that its legislative power should comprise "Matters affecting
the relations of Australasia with the islands of the Pacific," and this power was
accordingly given by the Federal Council of Australasia Act, 1885 (see p. Ill, fiipra).
The Council, however, never attempted to exercise this power. The sub-clause was
afterwards included in the Bill of 1891, and in the Adelaide draft of 1897. At the
Melbourne session there was a short discussion whether the sub-clause might be incor-
porated with the preceding one, " External affairs." (Conv. Deb., Melb., pp. 3<)-l.)

§ 215. "Relations . . . with the Islands."

Relations. — The term "relations" is of an abstract character; a relation is
defined as a connection which is perceived or imagined between two or more things. It
is obvious that the power to legislate concerning " the relations of the Commonwealth
with the islands of the Pacific " does not confer extra-territorial jurisdiction on the
Federal Parliament. It may mean that the Commonwealth is to enjoy a sphere of
commercial and political influence in those islands, so far as is not inconsistent with
mperial legislation or contrary to international law. It may give the Federal Govern-
ment a statutory right to recommend to the Imperial Government legislation and
idministration, which may promote the views and interests of the Commonwealth, in
reference to the islands of the Pacific. It may give the Federal Government the special
■ight to remonstrate against the adoption of an Imperial policy or the toleration of an
nternational policy, which may clash with the interests of the Commonwealth in those
slands The Commonwealth may be entitled to claim facilities for carrying on trade
md commerce ^vith the races inhabiting the islands, and to enter into treaties with
hem, which would not be subject to the same strict Imperial scrutiny as those with
iontinental nations.

The Pacific Isl.\sds.— By the Pacific Islands Protection Acts of 1872 and 1875 (35
nd 36 Vic. c. 19, 38 and 39 Vic. c. 51) provision was made by the Imperial Parliament
or the establishment of a British Protectorate over certain islands in the Western Pacific.
hi 13th August, 1877, by order in Council pursuant to the statutes, a Protectorate was
stablishefl over the Southern Solomon Islands, the Xew Hebrides, the Tongan or FriendU'
slands, the Samoan or Navigators Islands, the Groups of Melanesia, and the eastern coast
f New Guinea, such islands not being, at the time, within Her Majesty's Dominions or
rithin the jurisdiction of any civilize.l power. A High Commissioner was appointed to
xercise certain powers within the Protectorate, and the Governor of Fiji was appointed
he first High Commissioner. With the High Commissioner was associated a court of
epnty and Judicial Commissioners, with civil and criminal jurisdiction over British
objects in the islands.

In November, 1880, the Governor of New Zealand was appointed High Commis-
oner. The abuse of the coloured labour traffic, and the prevalence of outrages, led to
1- Australian agiUtion for closer supervision over the islands. On 2ud February, 1883,

638 COMMENTARIES ON THE CONSTITUTION. [See. 51-xxx.

the Agent-General of Queensland was insti'ucted to urge on the Imperial Government the
expediency of annexing to that colony the eastern part of New (iiiinea, not claimed by
Holland, on the understanding that Queensland would bear the expenses of govern-
ment. The reasons urged in favour of this step were : —

"That the trade on the coast of New Guinea and the islands adjacent — in whiel*
Queensland colonists were chiefly engaged — consisted of gold-mining, pearl-diving, and
beche-de-mer fishing, and employed a large and increasing number of colonists, over
which the authorities appointed by the Queensland Government found it difficult to
exercise control, especialh' as the jurisdiction of its government only extended within
sixty miles of the coast of the colony. That owing to the extended nature of the
jurisdiction of the High Commissioner of the Western Pacific, it was not possible for
him to exercise an adequate supervision over the settlers rapidly peopling the islands
and coast of New Guinea, who were practicallj' beyond the pale of restraint in their
dealings with the natives and with each other. That Queensland had already suffered
inconvenience and loss from the escape of political convicts and malefactors from the
French penal settlement of New Caledonia ; and apprehension was felt in the colonj'
lest some foreign government might institute a similar establishment almost within
sight of her territory. ' That in addition to this contingent danger . . . there is an
actual and present danger to Queensland interests in the fact of a coastline so near to
the scene of several of her industries, and dominating one side of the direct channel of
communication between Queensland and Europe, being in tlie hands of a savage race.'
Therefore the colonists of Queensland felt that in their interests it would be most
desirable to prevent the possibility of such a misfortune by tlie annexation of the
territory in the immediate proximity to their shores." (Todd, 2nd ed. pp. 248-9.)

The Imperial Government not having readily acquiesced in the proposed annexation,
the Queensland Government, on 20th March, 1883, sent Mr. H. M. Chester, a Pohce
Magistrate from Thursday Island, to formally annex to Queensland, in Her Majesty'^
name, that portion of New Guinea and the adjacent islands not occupied by the Dutch.
Mr. Chester accordingly, on 4th April, hoisted the British flag at Port Moresby. The
Imperial Government repudiated this act, considering that there was no necessity for
annexation, inasmuch as the powers of the High Commissioner for the Western Pacific
extended to New Guinea ; but if the colonj' of Queensland was prepared, with or without
assistance from the other colonies, to provide a reasonable annual sum to meet the cost
of placing one or more deputies of the High Commissioner on the coast, Her Majesty's
Government expressed their willingness to take steps for strengthening the naval force
on the Australian station, so as to enable Her Majesty's ships to be more constantly
present than hitherto in that part of the Pacific. At the intercolonial conference held
in Sydney in November, 188.3, at which all the Australian Governments were represented,
and at which the Federal Council Act was drafted, resolutions were adopted formula-
ting the views of the colonies with reference to the islands of the Pacific as follows :—

" That further acquisition of dominion in the Pacific, south of the equator, by any
foreign power, would be highly detrimental to the .safety and well-being of the Uritish
possessions in Australasia, and injurious to the interests of the empire. That, having
regard to the geographical position of the island of New Guinea, the rapid extension of
British trade and enterprise in Torres Straits, the certainty that the island will shortly
be the resort of many adventurous subjects of Great Britain and other nations, and the
absence or inadequacy of any existing laws for regulating their relations with the native
tribes, this convention, while full}' recognizing that the responsibility of extending the
boundaries of the empire belongs to the Imperial Government, is emphatically of opinion
that such steps should be immediatelj' taken as will most convenientlj' and effectively
secure the incorporation with the British Empire of so much of New Guinea and the
small islands adjacent thereto as is not claimed by the Government of the Netherlands.

These resolutions were communicated to the Imperial Government. In May, 1884,
a circular despatch was addressed by the Secretary of State for the Colonies to the
Australian Governors, intimating that Her Majesty's Government were disposed to think
that there shouhl be a High or Deputy Commissioner, with large powers of independent
action, stationed in New Guinea ; and that the cost of this system of protectorate should
be secured by one or more of the colonies to the Imperial (Government. On 6tu
November, 1884, the British Government proclaimed a protectorate over the southero
coast of New Guinea, to the eastward of the 141st meridian of east longitude, Germany

§215] POWERS OF THE PARLIAMENT. 639

ha\'ing claimed the northern portion of the east coast of the island. Further
correspondence ensued, and in 1886 modifie<l proposals for the annexation and government
of Xew Guinea were made by the Australian colonies interested.

At the Colonial Conference held in London in April, 1887, the Secretary of State for
the Colonies intimated that Her Majesty's Government had decided to accept the
modified proposals of the Governments of New South Wales, Victoria, and Queensland,
in regard to the administration of ]S'ew Guinea. In order to give effect to the scheme,
the Queensland Government introduced into the Parliament of that colony a Bill
providing that as soon as Her Majesty should have assumed the sovereignty over the
eastern portion of New Guinea, the Queensland Government would guarantee to pay to
Her Majesty, towards the expenses of government, the sum of £15,tKX» per annum for a
period of fifteen years. The British New Guineji Act, 1887, was passed by the
Parliament of Queensland, and was assented to by the Queen on 4th November, 1887.
Though the full amount of the indemnity i-equired by the Lnperial Government was
guaranteed by Queensland, each of the colonies of New South Wales and Victoria agreed
to pay one-third of the entire sum. It was agreed that contributions from the other
colonies, and revenue derived from New Guinea, should be applied in reduction of the
£15,000 subsidy. The contributing colonies have a voice in the administration of the
country. Thus by one of the earliest and most important of intercolonial agreements,
the obligation to perform a duty of an Australian character was equally divided among
and equally borne by the colonies most interested. On 8th June, 1888, Her Majesty
caused letters patent to be issued providing for the erection of certain territory in
Sonth-Eastern New Guinea and in the adjacent islands into a separate British possession,
to be known as British New Guinea, and also enacting a plan for its government.

So^•EREIG^■TY. — The Islands of the Pacific, South of the Equator, now belonging to-
Great Britain or under her protection at the passing of the Commonwealth Act are : —
South-eastern New Guinea, Southern Solomon Islands, Gilbert Islands, EUice Islands,
Phoenix Islands, Tokelau Islands, New Hebrides (dual control with France), Fiji Islands,
Tonga Islands, Savage Islands, and Cook Islands. Germany owns : — Part of New
Guinea, the Bismarck Archipelago, one of the largest of the Solomons, two principal
Islands of Samoa, and (north of the Equator) Caroline Islands and Marshall Islands.
France has New Caledonia, Loj-alty Islands, and Tahiti (eastward of the Cook Group).
The United States own one of the Islands of Samoa, and Hawaii, which lies half way
between Samoa and California.

Greater New Zealakd. — Since the passing of the Commonwealth Act the
Government of New Zealand, under the forward leadership of Mr. Seddon, has launched
proposals of a far-reaching character, having for their idtimate object the establishment
of a Federation which shall include New Zealand, Fiji, Tonga, and the Savage and Cook
Islands. This is not a recent idea. At one time it was the dream of far-seeing New
Zealand statesmen to establish an Island Federation which would embrace even Samoa ;
but such an extended scheme has been rendered unattainable by the partition of Samoa
between Germany and the United States.

On 28th September Mr. Seddon submitted the following resolution to the New
2<ealand House of Representatives :—

" That whereas it is desirable, in the best interests of the colony and the inliabitants
of certain islands in the Pacific hereinafter mentioned, that those islands should be
annexed to this colony, this house therefore approves of the alteration of the boundaries
of this colony, and consents to the extension of the said boundaries, so as to include the
Cook Group, including the islands of Raratonga, Mangaia, Atin, Aitutaki, Mitiari,
Mauke, Hervey (Maniiai) ; also the following islands : — Palmerston (Avarau), Savage
(Nine), Pukapuka (Danger), Rakaanga (Manahaki), and Penrhj-n (Tongareva)." *

This resolution was carried by 37 votes to 4, and was also passed by the Legislative
Council. Of the islands mentioned, Aitutaki, Penrh\-n, and Palmerston Islands were
already British territory, whilst the others were merely under British protection.
Lord Ranfurly, the Governor of New Zealand, was authorized by the Imperial Govern-

<340 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxxi.

ment to proceed to Cook's Islands in H.M.S. Mildura, and proclaim the annexation of
the group as part of the Queen's Dominions. The annexations having been made, it is
next expected that the Queen will issue letters-patent, under the Colonial Boundaries
Act, 1895, for the extension of the boundaries of New Zealand to include the islands
mentioned.

Mr. Seddon has since submitted a further resolution to the New Zealand House of
Representatives, proposing that Fiji should be relieved from the position of a Crown
colony and should be federated with New Zealand. Sir William Lyne thereupon cabled
to the Secretary of State for the colonies, protesting against any alteration in the
political status of Fiji pending the establishment of the Commonwealth ; and Mr.
Chamberlain replied that no such change would be made until the Federal Government
had been consulted.

51. (xxxi.) The acquisition ot property^^^ on just terras'^^^
from any State or person for any purpose in respect^^* ot which
the Parliament has power to make laws :

Historical Note. — At the Adelaide session Mr. Wise called attention to the
necessity of providing for the acquisition of public works within a State. (Conv. Deb.,
Adel. , p. 1199.) At the Melbourne session Mr. Barton proposed to insert a new sub-
clause : "The acquisition of property on just terms from any State or person for the
purposes of the Commonwealth." He expressed doubts whether the power to make laws
on matters incidental to the exercise of powers would be enough to carry a riglit of
eminent domain for federal purposes. Dr. Quick and Mr. Glynn supported the sub-
-clause ; but Sir Geo. Turner thought that time ought to be given for its consideration,
as such a power might involve enormous expenditure. Mr. Isaacs also suggested further
consideration, in order to examine the effect of the clause upon the territorial rights of
the States. Accordingly the sub-clause was withdrawn for the present. (Conv. Deb.,
Melb., pp. 151-4.) On the first recommittal Mr. O'Connor proposed the sub-clause as it
now stands, and it was agreed to. {Id. p. 1874.)

§ 216. " The Acquisition of Property."

This sub-section expressly confers on the Commonwealth, through the Federal
Parliament, the right — technically called the right of "eminent domain" — to
•compulsorily take property, both private and provincial, for Federal purposes. In the
Constitution of the United States there is no section exactly similar to this ; there is
one (Art. 1 sec. 8, subs. 18) giving Congress power to make all laws M'hich may be necessary
■and proper " for carrying into execution the foregoing powers." Under this it has been
held that the right of eminent domain is vested in the Federal (Government, and that it
may be exercised within the States, when necessary, for the enjoyment and exercise of
the powers conferred upon the Government by the Constitution. Hence in the case of
Kohl V. United States, 91 U.S. 367, it was decided by the Supreme Court that the
United States could, under the Acts of Congress of 2nd March and 10th June, 1872,
«,cquire land in Cincinnati upon which to build a Customs House, and that the right
could not be prejudiced either by the imwillingness of property -holders to sell, or by the
action of a State in prohibiting sale to the Federal Government. In the case of the United
States V. Jones, 109 U.S. 513, the opinion was further expressed that the right of
ominent domain was an incident of sovereignty, which required no special constitutional
provision to call it into existence.

It may be pointed out that a grant of "ways and means " power, similar to that of
Art. 1 sec. 8 subs. 18 of the Constitution of the United States, is to be found in sec. 51 —
xxxix. of this Constitution. However, it was not considered advisable to allow the

4§ 216-217.]

POWERS OF THE PARLIAMENT. 641

right of eminent domain in the CommonwealtU to be dependent iipi»n any implied or
incidental power. Although the American Courts have given the above decisions it
must be remembered that they were given under the Constitution of a sovereign State.
The Commonwealth is not a sovereign State, but a federated community possessing
many political powers approaching, and elements resembling, sovereignty, but falling
short of it. Its Parliament can only exercise delegated powers car\-ed out for it, and
aissigned to it, b}' the sovereign Parliament of Great Britain and Ireland. No implied
power will be founded on any conception of latent unexpressed sovereignty, as in the
case of the (Government of the United States. Hence all possible doubt as to the right
of the Commonwealth to acquire property for federal purposes has been removed by this
subsection, which renders it uunecessary to resort to the "ways and means"
sub-sec. xxxix.

A railroad, although constructed and owned by a private corporation, is for public
use, and the power of eminent domain may be exercised to condemn its right of way.
(Olcott V. Supervisors, 16 Wall. 678. Baker, Annot. Const. 182. )

The United States may exercise the right of eminent domain in the territories, as
well as in the States, for purposes necessarj- to the execution of the powers of the
government. All lands held by private persons, within the limits of the United States,
are subject to this authority. A railway, being primarily a public highway, may
exercise this power, when so authorized bj' proper legislative sanction. (Cherokee
Xation v. Southern Kansas R. Co., 135 U.S 641. Id.)

When in the judgment of Congress the public gootl requires a bridge over the
navigable waters of the nation to be removed or altered, the United States is not bound
to make compensation for damages incurred, although the bridge was constructed so as
to comply substantially with the provisions of law relating thereto. (Newport, &c.
Bridge Co. v. United States, 10.5 U.S. 470. Id.)

§ 217. "On Just Terms."

By the fifth amendment of the Constitution of the United States it was declared
that private property should not be taken for public use without just compensation.
This is regarrled not as a gi-ant but a restriction on the implied power. So the power of
the Federal Parliament to take propertj-, private or provincial, is limited by the
condition that it must be exerci.sed " on just terms." This condition is consistent with
the common law of England and the general law of European nations. It is intended to
recognize the principle of the immunity' of private and provincial propertj" from inter-
ference by the Federal authority, except on fair and et^uitable terms, and this principle
is thus constitutional!}- established and placed beyond legislative control. (Pumpelly v.
Green Bay Co., 13 WalL 166.)

Any law relating to this subject, passed by the Federal Parliament, would be
examinable by the High Court, and if on its face it appeared to be unjust it would be
liable to be declared unconstitutional and void. The Parliament would be able to pass a
^neral law providing the machinery and procedure, according to which the right of
eminent domain could in all ca.ses be exercised. Until such a general law were passed,
proceedings to acquire property and to ascertain compensation could be made to conform
to the laM's of the State in which such propertj- is situated. In each State, at the
present time, such machinen,' and procedure already exist for provincial purposes, in
the shape of Acts known as Lands Clauses Compensation Acts, or Lands for Public
Purposes Acquisition Acts. (United States v. Jones, 109 U.S. 513 )

In the United States it has been held that, under the provision for " just compensa-
tion," a Federal law is valid which directs that where part of a property is taken for a
lighway, any direct benefits to the owner from the establishment of the highwaj' shall
e taken into consideration in assessing the compensation. (Bauman v. Ross, 167 U.S.
4S. ) Compensation must not only be just to the owner whose property is taken, but just
■ the public who have to pay. (Searl r. Lake County School District, 133 U.S. 553.)

Whenever any business, franchise, or privilege becomes obnoxious to the public
ealth, manners or morals, it ma}- be regulated by the police power of the State even to

]

642 COMMENTARIES ON THE CONSTITUTION. [Sec. 51- xxxii.

. . . J

suppression ; individual rights being compelled to give way for the benefit of the whole
body politic. But when, in the exercise of this police power, private property or private
vested rights must be taken for public use, in order to carry out improvements or
regulations, or to carry on business or public works, looking to the benefit of the public
health, manners or morals, compensation must be made for the property taken. (Now
Orleans Water-works Co. v. Tammany Water- works Co., 14 Fed. Rep. 194. Baker,
Annot. Const. 183.)

When the Federal Government appropriates private property, it is under an implied
obligation to make jiist compensation therefor; and, upon failure to do so, the owner
may sue upon such obligation, although there may have been no formal act looking
towards such compensation. (United States v. Great Falls Manufacturing Co., 112
U.S. 645. Id. 184.)

It is not necessary that the property should be absolutely taken to entitle the owner
to compensation. If there is such serious interruption with the common and necessary
use as to practically destroy its value, it would be a taking within the meaning of the
fifth amendment. (Pumpelly v. Gi'een Bay Co., 13 Wall. 16ti. Id.)

Where private property is taken by the government in time of war or public danger
and converted to public use, the government is bound to pay for the same. (United
States V. Russell, 13 Wall. 623. Id.)

Private property may be taken by a military commander to prevent its falling into
the hands of the enemy ; or, where necessary, it may be taken for the use of the public.
In such case the government is bound to make full compensation ; but the officer is not
a trespasser, provided the danger is imminent or the necessity urgent, and such as will
not admit of delay. (Mitchell i;. Harmony, 13 How. 115. Id.)

§ 218. " Purpose in Respect of Which."

The second limit to the power of the Commonwealth to acquire private or
provincial property is, that it must only take it for purposes in respect of which the
Parliament has power to make laws. Thus lands and buildings could only be taken for
postal, telegraphic, telephonic, naval and military purposes ; for arsenals and fortifica-
tions ; light-houses ; quarantine stations ; customs houses ; federal offices and federal
law courts ; and other purposes similarly authorized by the Constitution.

51 (xxxii.) The control of railways with respect to
transport for the naval and military purposes"^^ of the
Commonwealth :

Historical Note. — In the Bill of 1891 sub-clause 29 extended to " the control of
railways with respect to transport for the purposes of the Commonwealth." Mr.
Gordon and Mr. Clark proposed to add provisions with regard to preferences aud
discriminations (see Historical Note to sec. 102). Mr. Baker moved to add "The
altering of the gauge of any line of railway, and the establishing a uniform gauge in any
State or States ; " but this was negatived. (Conv. Deb., Syd., 1891, pp. 692-8.)

At the Adelaide session in 1897 the sub-clause was confined to " the military
purposes of the Commonwealth." At the Melbourne session a suggestion by thfr
Legislative Council of New South Wales, to insert "but only" after " transport," was
negatived as unnecessary, and on Mr. Barton's motion the words " naval and " were
inserted before " military." (Conv. Deb., Melb., p. 154.)

{5 219. "Transport for the Naval and Military Purposes."

The railways at present belong to the States and are worked by the States. This
sub-section confers on the Federal Parliament the power to exercise a modified control
over the railways, so far as may be necessary to regulate the transport of forces and
material for naval and military purposes. This control will cover the time and manner
of using the railways for defence purposes, as well as the indemnity which will, as a

§§ 219-220.]

POWERS OF THE PARLIAMEXT. 643

matter of justice, have to be paid to the State authorities for such compulsory user.
No doubt the Federal Government will be able to make arrangements ^^ith the State
Governments, determining the manner and conditions under which the railways may be
so used. It is not likely that the Federal Government would dictate its own terms, so
long as a reasonable spirit was displayed by the State Governments.

Such a power is necessarily a concomitant and auxiliary of " the naval and military
defence of the Commonwealth," which by sub. -sec. vi. is vested in the Federal Parliament.
Probably, even without sub-sec. xxxii., the Parliament would, in an actual state of war,
or in making necessary arrangements for the defence of the country antecedent to war,
be able to authorize the use of the State railways It would be a defensive power,
necessarily embraced in sub-sec. vi. It has not, however, been allowed tc rest on that
sub-section, but has been placed beyond the region of controversy.

By the Constitution of the German Empire (Art. 41) it is provided that railways
considered necessary for the defence of Germany, or in the interest of general commerce,
may b}- Imperial law be constructed at the cost of the Empire, even in opposition to the
will of those members of the Union through whose territory the railroads run, without
prejudice, however, to the sovereign rights of that countrj- ; or private persons may be
charged with their construction, and receive rights of expropriation. Every existing
railway company is bound to permit new railroad lines to be connected with such
national lines, at the expense of the latter. All laws granting existing railway companies
the right of injunction against the building of parallel or competitive lines are abolished
throughout the Empire, without detriment to rights already acqxiired. Such rights of
injunction cannot be granted in future concessions. Managers of all railways are
required to obey requisitions made by the Imperial authorities for the use of their roads
for the defence of Germany. In particular, troops and all material of war must be
forwarded at uniform reduced rates. (Art. 47. ) These articles do not apply to Bavaria,
but by Art. 46, ss. 2-3, the Imperial Government has power, with regard to Bavaria, to
prescribe by means of legislation uniform rules for the construction and equipment of
such railways as may be of importance for the defence of the country.

51 (xxxiii.) The acquisition, with the consent of a State,
of any railways-^ of the State on terms arranged between the
Commonwealth and the State :

HiSTOKiCAL Note. — At the Adelaide session Mr. McMillan moved a new sub-clause :
" The taking over by the Commonwealth, with the consent of the State, of the whole or
any part of the railways of any State or States upon such terms as may be arrange<l
between the Commonwealth and the State." This was agreed to. (Conv. Deb., Adel.,
p. 1199.)

At the ilelbourne session Mr. Glynn moved the omission of the words " with the
consent of the State," in order to enable the Commonwealth to take over the railways.
After debate, this was negatived by 31 votes to 14. (Conv. Deb., ilelb., pp. 154-63.)
The sub-clause was verbally amended before the first report, and after the fourth
report.

§ 220. " Acquisition ... of any Railways."

The railway question was one of the first practical problems which received the
attention of the Federal Convention at Adelaide. It was generally admitted that the
railways, being the arterial channels of communication between the colonies, were
intimately connected with trade aud commerce, and that it would be useless for the
Constitution to declare that trade and commerce between the States should be absolutelv
free if the States were allowed to continue to impose preferential or diflFerential railway

644 COMMENTARIES ON THE CONSTITUTION. [Sec.Sl-xxxiii.

rates, which would materially interfere with the freedom and equality of trade. It was
also perceived that the railways were valuable assets, associated with and forming the
main tangible security for the public debts of the colonies ; and that the transfer of the
railway's from the States to the Commonwealth might have to be accompanied by the
transfer of the public debts.

Two propositions were formulated in the course of debate ; the first was that the
Commonwealth should, within a specified time, and regardless of the wishes of the
States, take over and federalize the public debts and the railways ; the second was that
the railways should remain the property of the States, and should be managed by them,
but that they should be subject to limited federal control, so as to prevent any derogation
from freedom and equality of trade, and so as to guard against preferences and
discriminations in traffic rates and traffic arrangements, which might indirectly prejudice
that freedom and equality. The Convention accepted the solution of the problem
suggested by the policy of limited federal control, which is expressed in sees. 98, 99, 101,
102, 103 and 104, of this Constitution.

A distinct proposal was submitted by Mr. J. T. Walker, that " the Parliament
shall take over the whole of the railways of the several States, excepting Tasmania and
Western Australia if they desire to be excepted, and each State shall be charged with
any deficiency or credited with any net profits on the working of such railways." The
resolution found so little support that it was withdrawn. (Conv. Deb., Adel., p. 1176.)

At the same time it was considered prudent to authorize the Federal Parliament at
any time to acquire the railways of a State, with the consent of the State, on fair and
reasonable terms, and also to allow the Parliament to construct or extend railways
within a State with the consent of the State. This idea, first suggested by Mr. R. E.
O'Connor (Conv. Deb., Adel., p. 60), was afterwards presented by Mr. W. McMillan,
in the form of the sub-section which is now under consideration. (Conv. Deb., Adel.,
p. 1199.)

The subjoined return, prepared by Mr. J. J. Fenton, Assistant Government
Statist of Victoria, shows the mileage and cost of railways in the various colonies up to
the year ending 30th June, 1899 : —

Miles.

Capital.

Revenue.

Cost of
Working.

Interest.

New South Wales...

Victoria

South Australia ...

Queensland

Western Australia..

Tasmania

Total

2,707
3,143
1,870
2,746
1,355
438

£
37,992,276
38,974,410
14,042,007
18,670,208
6,427,370
3,585,040

£
3,145,273
2,873,729
1,073,155
1,373,475
663,220
178,180

£
1,690,442
1,716,441
634,755
784,811
712,329
141,179

£
1,377,950
1,472,090
503,705
768,333
207,257
140,881

12,259

119,691,311

9,307,032

5,679,957

4,470,216

By virtue of this sub-section the Federal Parliament may, at any time, take over
the whole or part of the railways of a State .subject to the conditions (1) that the State
through its legislature consents, and (2) that the terms of the acquisition and tran.sfer
are arranged to the joint satisfaction of the Government of the Commonwealth and the
Government of the State concerned. In this manner the whole of the State railways
could, eventually, be transferred by the States to the Commonwealth.

§221.] POTVERS OF THE PARLIAMENT. 645

51. (xxxiv.) Railway construction*^^ and extension in any
State with the consent of that State :

Historical Note. — The report of the Committee of the PriN"^' Council in 1849
proposed that the General Assembly should have power to make laws as to " The
fonnation of roads, canals, and railways traversing any two or more of the Colonies."
(See p. 85, sxipra.) The report of Wentworth's Committee in 1853 contained a similar
provision (See p. 91, siipra ) Wentworth's Memorial in 1857 proposed that the
Federal Assembly should have power with respect to the gauges of connecting railways.
^See p. 94, iupi-a.)

At the Adelaide session in 1897 Mr. McMillan proposed a new sub-clause :
" Railway construction and extension with the consent of any State or States concerned."
This was agreed to. (Conv. Deb., AdeL, p. 1199.)

At the Melbourne session, a suggestion by the Legislative Council of New South
Wales, to insert "but only" after "extension," was negatived. Mr. Deakin called
attention to the vagueness of the word " concerned," and the sub-clause was amended
to its present shape. Mr. Reid objected to the whole sub-clause, unless restricted to
defence purposes, as a dangerous temptation to the Commonwealth, but after debate
withdrew his opposition for the time being. (Conv. Deb., Melb., p. 163-80.)

§ 221. ''Railway Construction."

As the preceding sub-section provides an opening for the gradual transfer of
established railways from the States to the Commonwealth, so this sub-section affords
scope for the initiation of a federal policy of railway construction and extension. It
will, no doubt, be first used to authorize the construction of trans-continental lines,
such as those already projected to connect the railway system of South Australia, at
Port Augusta, with that of Western Australia, and to extend the South Australian
railway at Oodnadatta northward, to join the Northern territory railways, running
southward from Port Darwin. So it could be used to authorize the connection of such a
trans-continental line, when constructed, with the railways of Queensland and New
South Wales. The only condition precedent to the exercise of the power is the consent
of the State, or States, through which the proposed Federal railways are to run.

51. (xxxv.) ConciHation and arbitration'^' for the preven-
tion and settlement of industrial disputes extending beyond
the limits of any one State:

Historical Note. — In the Sydney Convention of 1891, Mr. Kingston proposed a
new sub-clause : " The establishment of courts of conciliation and arbitration, having
jurisdiction throughout the Commonwealth, for the settlement of industrial disputes."
Sir Samuel Griffith expressed the opinion that the amendment ought to be moved in the
chapter dealing with the Federal Judiciary, and Mr. Kingston accordingly withdrew it.
(Conv. Deb., Syd., 1891, pp. 688-9.) Subsequently he proposed to insert, in sec. 1 of
Chap. III., the words " including courts of conciliation and arbitration for the settlement
of industrial disputes." This was criticized as an interference with the functions of the
States, and was negatived by 25 votes to 12. (Id. pp. 780-5.)

At the Adelaide session in 1 897 Mr. Higgins proposed the sub-clause as it now stands :
but after debat* it was negatived by 22 votes to 12. (Conv. Deb., Adel., pp. 782-93.)

At the Melbourne session Mr. Higgins moved the sub-clause again, and after
considerable debate it was agreed to by 22 votes to 19, (Conv. Deb., Melb.. pp.
180-215.)

646 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxxv.

§ 222. " Conciliation and Arbitration."

In the Convention of 1891, when Mr. C. C. Kingston proposed that the Federal
Parliament should have the power to establish Courts of Conciliation and Arbitration,
having jurisdiction throughout the Commonwealth for the settlement of industrial
disputes, he pointed out that the object was to deal with labour conflicts, the ramifica-
tions of which might extend beyond the limits of a State. It was proposed to create a
Federal tri bunal, which would be able to settle such matters more eflfectually than could
be done by State tribunals, under State legislation ; but there was no intention to
deprive the States of the powers which they possessed to legislate concerning concilia-
tion and arbitration for the settlement of industrial disputes within their respective
boundaries The principal objection urged against the proposal was that it would
involve an interference with private property and civil rights, and that it would be
expedient to leave such questions within the control of the States.

In the Convention of 1898 Mr. Kingston's pioneer proposals with reference to this
subject were found of great service. By that time political thought had developed and
public sentiment had ripened in the direction indicated by him in 1891. At Adelaide
Mr. H. B. Higgins submitted a sub-clause " Industrial disputes extending beyond the
limits of a State."

" I want simply to give the Federal Parliament a power to establish these courts if
it thinks fit. Therefore there will have to be an incidental alteration in the judicatiu'e
part of the Bill, so as to enable the Federal Parliament to create a court for the purpose.
It may be said, ' Leave the industrial disputes to the States ;' but it is well known that
these disputes are not confined, in their evils, to any one State. If there is a sliipping
dispute in Sjdney it is sure to be felt in Melbourne ; if there is a coal dispute in
Newcastle it is sure to be felt at Korumburra. Any one State is unable to cope with
the difficulty." (Mr. H. B. Higgins, Conv. Deb., Adel., p. 782.)

" When first I attempted to deal with it I thought that for the purpose of making
any effectual provision on the subject federal legislation was necessary on account of the
extent of the disputes which occurred in industrial matters, and upon whicli local
legislation, confined to provincial limits, is not competent to deal. The opinion I
affirmed is here borne out by a variety of cases. If you had federal legislation dealing
with this matter, you could establish courts which would exercise a wider jurisdiction
and command greater respect and confidence than can be hoped for under any system of
provincial legislation " (Mr. C. C. Kingston, Conv. Deb., Adel., p. 782.)

The arguments presented in opposition to the proposal were that to interfere with a
State, in the settlement of trade disputes, would be an undue and unnecessary intrusion
on the local industrial life of a State ; that every dispute was complete in itself in each
State ; that each State would have ample power to settle a dispute arising within it ;
that it was impossible to conceive a dispute in a State which, in itself, could extend
beyond the limits of a State, in such a manner as to establish a formula determining
Federal jurisdiction. In reply to this it was said that a dispute beginning in Adelaide
might overflow into Western Australia or Victoria, in which case the State law, if any,
relating to it would cease, and the Federal law, if any, would begin.

" Yes ; but it will be difficult to determine the moment of overflow even if you can
determine the point of overflow. We can scarcely' say if there is to he a law in each
State that the federal law must not diller from some, if not from all, of tliese. Consequently
it will be a curious problem in relation to penalties and observances for those concerned
to know the moment when tliey hare passed from under the dominion of the State law
to the dominion of the federal law. That is the great difficulty to settle." \Mr. A.
Deakin, Conv Deb., Adel., p. 784.)

"In one -sense it is hard to say that any industrial dispute is a dispute outside the
limits of the colony. . . . It is impossible to say when any dispute extends outside
the limits of a colony, because a dispute is always in one colony although it may be going
on in every colony. In another sense every dispute extends outside the limits of a
colony." CMr. B. R Wise, Conv. Deb., Adel , p. 785.)

The proposed new sub-clause was amended in form, but on a division it was rejected
by 22 votes to 10.

^§ 222 22;?.] POWERS OF THE PARLIAMENT. 647

At the Melbourne session, the sub-clause was again proposed by Mr. Higgins, and
led to a prolonged debate. Mr. W. McMillan was strongly of opinion that this matter
ought to be left absolutely to the States. Sir John Downer contended that it was not a
federal question at all. Mr. J. H. Sjinon thought it unnecessary and mischievous to
insert such a power in the Constitution. Mr. Wise did not think that it would be prudent
to create a Federal Court, ha^nng authority to fix the rate of wages for the whole of
Australia. Mr. Isaacs thought that a federal tribunal, in which both sides would have
confidence, would avert a national danger that might confront them at any time. Mr.
Trenwith pointed out that in consequence of the continually increasing complexity of
our industrial system, there was scarcely ever an industrial dispute of any magnitude
whose effect did not spread over the borders of two or three, amd sometimes of all the
colonies. This was notably so in the maritime strike which took place some years ago
over the difficulties with the marine officers. That dispute, at some time or other of its
existence, extended to every one of the colonies, including New Zealand.

Mr. G H. Reid believed in the compulsory investigation of trade disputes by State
authorities, but he was of opinion that the proposed sub-clause would tend to enlarge
the area of trade disputes, for the very reason that the employers or the men might be
disposed to extend the area of a dispute, in order to get the advantage of having it
settled by the federal tribunaL Sir John Forrest supported the sub-clause, because the
Federal Parliament would be better able to deal with the subject, and would deal with
it more moderately than the local parliaments were likely to do.

One of the principal objections raised against compulsory arbitration was that there
were no means available by which an award, when made, could be specifically euforced.
How, it was asked, are you going to enforce an award against a midtitude of working
men ? The answer was found in the scheme of conciliation and arbitration legalized iu
New Zealand. Under the law of that country the award, when made, is in each case
filed in the Supreme Court, and has the force and validity of an award made on an
ordinary arbitration. Each party to the award, whether employer or workmen, or
unions represeuting them, can obtain a judge's order exacting a penalty for breach of the
award. The penalty fixed does not exceed the sum of £500 in the case of an individual
employer or a trade union. Should the funds of a union be insufficient to pay the
penalty, each member is liable to the extent of not more than £10. (Reoietc of Jievietc«,
December, 1897, p. 741.) On a division the sub-clause was finally adopted by 22 votes
to 19.

51. (xxxvi.) Matters in respect of which this Constitution
makes provision until the Parhament otherwise provides^''' :

Historical Xote —This sub-section was added as a drafting amendment at the
Melbourne session, before the first report, and was verbally amended after the fourth
report.

§ 223. "Until the Parliament Otherwise ProYides."

There are no less than twenty-two provisions in the Constitution in which it is
enacted that the law of the Constitution shadl be to a certain effect " until the
Parliament otherwise provides." By implication this confers on the Parliament authoritv
to pro^^de " otherwise." Sub-section xxxxi. has been introduced to give the Parliament
express power to provide " otherwise." The result ia that the Parliament can alter the
(institution in respect to the following matters : —

(1.) Goverxor-Gexerjll's Salary. — May be increased or diminished (sec. 3).
(2.) Sexate Elector.\tes. - E^ch State may be divided into electoral divisions
(sec 7).

648 COMMENTARIES ON THE CONSTITUTION. [Sec. 61-xxxvii.

(3.) Queensland Senatorial Divisions. — May be abolished (sec. 7).

(4.) Number of Senators. — May be increased or diminished, but so that no

Original State shall have less than six (sec. 7).
(5.) State Electoral Laws. — Regulating the election of senators may be

superseded by Federal electoral laws (sec. 10).
(6.) Quorum or Senate. — May be increased or reduced (sec. 22).
(7.) Mode ov Ascertaining Quota. — Maybe altered (sec. 24).
(8.) Electoral Divisions. — Federal electoral divisions for House of Repre-
sentatives may supersede State-made electoral divisions (sec. 29).
(9. ) Qualification or Electors. — Federal law prescribing the qualification of
electors may supersede State laws (sec. 30).
(10.) State Electoral Laws. — Regulating the election of the members of the
House of Representatives may be superseded by Federal electoral laws
(sec. 31).
(11.) Qualification of Members. — May be altered (sec. 34).
(12.) Quorum of House. — May be increased or reduced (sec. 39).
(13.) Penalty for Sitting When Disqualified. — May be altered (sec. 46).
(14.) Disputed Elections. — Mode of settling may be altered (sec. 47).
(15.) Payment or Members, — May be increased or reduced (sec. 48).
(16.) Number or Ministers. — May be increased (sec. 65).
(17.) Salaries of Ministers. — May be increased (sec. 66).
(18.) Appointment and Removal of Non-Political Officers.— May be regu-
lated (sec. 67).
(19.) Conditions AND Restrictions on Appeals. — May be regulated (sec. 73).
(20) Application of Customs and Excise Revenue. — Ten years after the
establishment of Commonwealth the Braddon clause may be repealed or
altered (sec. 87).
(21.) Financial Assistance to States. — Ten years after the establishment of
the Commonwealth the Parliament may determine not to grant further
financial assistance to States (sec. 96),
(22.) Audit. — Parliament may make audit laws (sec. 97).

51. (xxxvii.) Matters referred^^* to the Parliaaient of the
Commonwealth by the Parliament or Parliaments of any-
State or States, but so that the law shall extend only to
States by whose Parliaments the matter is referred, or which
afterwards adopt the law :

Historical Note.— The genesis of this subsection is to be found in the scheme for
the establishment of a General Federal Assembly first recommended by the Committee
of the Privy Council in its Report of 1849. Among the powers purposed to be conferred
on the General Assembly was : " 9. The enactment of laws aifecting all the colonies
represented in the General Assembly on any subject not specifically mentioned in this
list, and on which it should be desired to legislate by addresses presented to it from the
legislatures of all the colonies " (p. 85, nupra). Wentworth's Constitutional Committee
of 1853 recommended that the General Assembly should have power to legislate " on all
other subjects which may be submitted to them by address from the Legislative Council
and Assembly of the other colonies." The select Committee which drafted the Victorian

§§ 223-224.]

POWERS OF THE PARLIAMENT. 64&

Constitution, in its report, dated 9th December, 1853, recommended that proTision
should be made for occasional!}- convoking a General Australian Assembly for legislating
on such questions of vital inter-colonial interest as might be submitted to it by the Act
of any legislature of one of the Australian colonies. The Memorial and Draft Bill, pre-
pared by Wentworth in 1857 for the creation of an Australian Federal Assembly,
provided that the Assembly should have power to deal with certain specified subjects
" and any other matter which might be submitted to it by the legislatures of the
colonies represented therein."

The same idea was developed, and first received practical expression, in the Federal
Council Act of 1885, sec. 15, which assigned to the Council authority, at the request of
the legislatures of two or more of the colonies represented therein, to legislate concern-
ing :—

(A) Any matter which at the request of the legislatures of the colonies Her
Majesty by Order in Council shall think lit to refer to the Council :

(»') Such of the following matters as may be referred to the Council by the
legislatures of any two or moi-e colonies, that is to say — general defences,
quarantine, patents of invention and discovery, copyright, bills of
exchange and promissory notes, uniformity of weights and measures,
recognition in other colonies of an}- marriage or divorce duly solemnized
or decreed in any colony, naturalization of aliens, status of corporations
and joint stock companies in other colonies than that in which they have
been constituted, and any other matter of general Australasian interest
with respect to which the legislatures of the several colonies can legislate
within their own limits, and as to which it is deemed desirable that
there should be a law of general application : provided that in such cases
the Acts of the Council shall extend only to the colonies by whose
legislatures the matter shall have been so referred to it, and such other
colonies as may afterwards adopt the same.

In the Bill of 1891 the sub-clause was passed substantially as it now stands ; and at
the Adelaide session in 1897 that draft was followed.

At the Melbourne session Mr. Deakin raised the question whether the sub-clause,
though suitable enough for the Federal Council, was sufficient for the purposes of the
Commonwealth, and whether it authorized legislation involving expenditure or taxation ;
and he also raised the question whether a reference once made would be revocable. Dr.
Quick suggested that the provision afforded an easy mode of amending the Constitution
without consulting the people. Finally, after considerable debate, the sub-clause was
agreed to. (Conv. Deb., Melb., pp. 215-25.) It was verbally amended after the fourth
report.

§ 224. " Matters Referred to the Parliament."

This sub-section evidently contemplates a class of subjects which have not been
transferred to the Federal Parliament by the Constitution ; which are still within the
competence of the State Parliaments to deal with separately and independently, but as
to which it may be hereafter deemed desirable that there should be a law of general
application within the referring States and such as afterwards adopt the law founded
on their reference. For instance, the Parliaments of Xew South Wales, Victoria, and
South Australia might find it consistent with their interests to refer to the Federal
Parliament such questions as the utilization of the waters of the Murray for irrigation
[purposes ; the settlement of riparian rights ; the protection of game ; the preservation
Df inland and coastal fisheries ; inter-state sanitarj' laws and inspection laws generally.

650 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxxviu.

51. (xxxviii.) The exercise within the Commonwealth,
i\t the request or with the concurrence of the Parhaments of
all the States directly concerned, of any power-"^^ which can
at the establishment of this Constitution be exercised only by
the Parliament of the United Kingdom or by the Federal
Council of Australasia :

Historical Note. — The Bill of 1891 contained a sub-clause in substantially the
same words, except that in place of the single word "power" there was the phra.se
" legislative powers with respect to the affairs of the territory of the Commonwealth, or
a,ny part of it." (Conv. Deb., Syd., 1891, p. 698.)

At the Adelaide session, in 1897, the sub-clause was passed practically in its present
form. At the Melbourne session Mr. Barton explained that the words omitted were
thought to be surplusage. Some discussion took place as to the scope of the sub-clause.
(Conv. Deb , Melb., pp. 225-6.) Drafting amendments were made before the first report
and after the fourth report.

§ 225. " The Exercise ... of any Power."

It is not very clear what powers are referred to in this sub-section. It is apparently
another " drag-net," intended to enable the Federal Parliament, with the concurrence
of the State Parliaments, to exercise certain powers which are capable of being exercised
within the Commonwealth, but which are not among the enumerated powers of the
Federal Parliament, and which, not being vested in the State Parliaments, cannot be
referred by those Parliaments under sub-sec. xxxvii. In contradistinction to sub-sec.
xxxvii., which refers to powers exercisable by the State Parliaments, this sub-section
refers to powers which at the establishment of the Constitution are " only '" exercisable
by either (a) the Parliament of the United Kingdom, or (b) the Federal Council of
Australasia. We must therefore enquire what powers there are which are capable of
being exercised " within the Commonwealth," and for the "peace, order, and good
government of the Commonw^ealth," but which at the establishment of tlie Common-
wealth are only exercisable by the Imperial Parliament or by the Federal Council.

(a) Powers Exercisable by the Imperial Parliament. — The powers referred to,
being, at the establishment of the Constitution, " only " exercisable by the Imperial
Parliament, must be powers which did not belong to the Parliaments of the
colonies before they became States. But the Parliament of each colony had general
powers to make laws for the peace, order, and good government of the colony, subject
only (1) to the general excepticm expressed in the Colonial Laws Validity Act — that .such
laws must not be repugnant to any Imperial law expressly extending to the colony ;
(2) to certain particular exceptions expressed in the Constitution Act of each colony ;
and (3) to the limitation that such laws could not operate extra-territorially, except
where express authority to that effect had been given by the Imperial Parliament.

It would seem, therefore that the only powers to make laws for the peace, order,
and government of a colony which at the establishment of the Commonwealth are
"only exercisable" by the Imperial Parliament are powers which come within one of
these three classes of exceptions or limitations. Does this sub-section enable the Federal
Parliament, with the concurrence of the States, to pass laws for the exercise of any of
these powers ?

When the Commonwealth Bill was before the Imperial Parliament, tliis sub-section
was mentioned as one of the provisions of the Constitution which might raise a doubt
as to the applicability of the Colonial Laws Validity Act. The opinion has already been
expressed (pp. 347-352, supra) that this doubt was unfounded, and that the Common-
wealth has no power to pass laws repugnant to Imperial legislation extending to the

§§ •220-226.] POWERS OF THE PARLIAMENT. 651

colonies — such as the Merchant Shipping Act of 1894. It seems equally clear that this
sub-section does not enable the Federal Parliament to pass laws with an extra-territorial
operation ; the words " the exercise icithm the Commontcealth " exclude such a construc-
tion. Does it then enable the Federal Parliament, with the concurrence of the States,
to exercise any powers denied to the States by the particular exceptions contained in the
Ck)nstitution Acts of the States ? Those Constitution Acts are Imperial laws, so that
«ven this construction would involve, pro tanto, a conflict with the Colonial Laws
Validity Act, which does not seem to be contemplated. It is ditficult, therefore, to see
what power can be conferred on the Federal Parliament by these words.

{h) Powers Exercisable by the Federal Council. — It is equally difficult to give
any efifect to the power to make laws in respect of the exercise of powei-s which, at the
establishment of the Commonwealth, were only exercisable by the Federal Council.
In the first place, the Federal Council Act is repealed by covering clause 7 of the
Commonwealth Act, which took effect on the passing of the Act on 9th July, 1900 ; so
that at the date of the establishment of the Commonwealth no powers whatever are
exercisable by the Federal Council. (See remarks by Mr. Isaacs and Mr. Barton, Conv.
J)eb., Melb., pp. 225-6.) But apart from this question, the powers expressly given to
the Federal Parliament seem to include every power which was ever exercisable by the
Federal Council. The Federal Council only had independent legislative authority over
seven subjects (see pp. 111-2, I'upra), every one of which is covered by sec. 51 of this
Constitution ; and its powers of legislation upon reference by the Parliaments of the
[colonies were certainly no wider, and probably narrower, than those given to the
I Parliament of the Commonwealth by sub-sec. xxxvii.

51. (xxxix.) Matters incidental^ to the execution of any
power vested by this Constitution^ in the Parlianient'^^ or in
either House thereof*®, or in the Government of the Com-
monwealth^, or in the Federal Judicature"^\ or in any
department""- or officer^^ of the Commonwealtli.

Historical Note. — The Constitution of the United States empowers Congress " to
make all laws which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in the Government
of the United States, or in any department or officer thereof." (Art. I. sec. viii.
sub-s. 18.) In the Bill of 1891 the sub-clause stood: "Any matters necessary or
incidental for carrying into execution the foregoing powers and any other powers vested
by this Constitution in the Parliament or Executive Government of the Commonwealth
3T in any Department or Officer thereof." In that form it was adopteil at the Adelaide
session in 1897.

At the Sydney session Mr. Isaacs calle<l attention to the absence of any mention of
the Judiciary. (Conv. Deb., Syd., 1897, pp. 1190-1.)

At the Melbourne session the sub-clause was amended, in Committee and after the
bnrth report. (Conv. Deb., Melb., pp. 226-7.)

§ 226. " Matters Incidental."

In section 51, and in various other sections of the Constitution, certain legislative
JOwei-3 are conferred on the Federal Parliament. These powers are conveyed in general
anguage. It was not necessary, and it would not have been appropriate, in framing a
constitution, to crowd it with minute details and elaboi-ate specifications of power, or

(declare the means by wliich those powers were to be carried into execution. (Martin

652 COMMENTARIES ON THE CONSTITUTION. [Sec. 51-xxxix.

power draws after it others not expressed, but consequential, incidental, and vital to
its exercise ; not substantive and independent, but auxiliary and subordinate. (Andersoa
V. Dunn, 6 Wheat. 204; McCulloch v. Maryland, 4 Wheat. 31fi.) The nature of the
instrument demanded that only its bold outlines and fundamental principles should be
delineated and its important objects designated, leaving the minor ingredients which
compose those objects to be deduced from the nature of the objects themselves. (Prigg
V. Pennsylvania, 16 Pet. 539 ; United States v. Cruikshank, 92 U.S. 542. Baker, Annot.
Const. 5b. )

For example, the Federal Parliament is empowered to legislate concerning trade
and commerce, customs and excise, and taxation. This necessarily implies a power to
provide for the making and enforcement of commercial laws and revenue laws, and for
the punishment of oflfences against those laws. Without that incidental power the
substantive power would have been paralyzed and abortive. So, likewise, the power to
provide for the defence of the Commonwealth necessarily implies the power to raise,
pay, and discipline forces. The power to coin money implies the power to impose
punishment for the circulation of counterfeit coin. The power to conduct the postal
department implies the power to inflict punishment for stealing letters from that
department.

This sub-section has been introduced in order to give express authority to deal with
these matters of machinery, procedure, execution, and "ways and means. " It corresponds
with Art. I. sec. 8, subs. 18, of the Constitution of the United States, and is a direct
authority for the exercise of all necessary, incidental, or implied powers, to enable the
Federal Parliament to carry out the great provisions of the instrument of government.
As such, it is a distinct enlargement of power, and adds fulness and elasticity to every
specific grant. (McCulloch v. Maryland, 4 Wheat. 316 ; Anderson v. Dunn, 6 Wheat.
204 ; United States v. Fisher, 2 Cranch, 358; United States v. Marigold, 9 How. 5U0.
Baker, Annot. Const. 56.)

" The powers of the government are limited, and its limits are not to be transcended.
But the sound construction of the Constitution must allow to the national legislature
that discretion witli respect to the means by which the powers it confers are to be
carried into execution, which will enable that body to perform the high duties assigned
to it in the manner most beneficial to the people. Let the end be legitimate, let it be
within the scope of the Constitution, and all means which are appropriate, which are
plainly adapted to that end, which are not prohibited but consistent with the letter and
spirit of the Constitution, are constitutional." (Per Marshall, C.J., in McCulloch v.
Maryland, 4 Wheat. 421.)

" Every power vested in a government is in its nature sovereign, and includes by
force of the term a right to employ all the means requisite and fairly applicable to the
attainment of the ends of such power, and which are not precluded by restrictions and
exceptions specified in the Constitution." (Hamilton's Works, Lodge's ed. vol. iii. p.
181.)

" It was replied by the opposite school that to limit the powers of tlie government
to those expressly set forth in the Constitution would render that instrument unfit to
serve the purpose of a growing and changing nation, and would, by leaving men no legal
means of attaining necessary but originally uncontemplated aims, provoke revolution
and work the destruction of the Constitution itself. This latter contention derived
much support from the fact that there were certain powers that had not been mentioned in
the Constitution, but which were so obviously incident to a national government that
they must be deemed to be raised by implication. For instance, the only offences which
Congress is expressly empowered to punish are treason, the counterfeiting of the coin or
securities of the government, and piracies and other offences against the law of nations.
But it was very early held that the power to declare other acts to be offences against the
United States, and punish them as such, existed as a necessary appendage to various
general powers. So the power to regulate commerce covered the power to punish
offences obstructing commerce ; the power to manage the post office included the right
to fix penalties on the theft of letters ; and, in fact, a whole mass of criminal law j.'rew
up as a sanction to the civil laws which Congress had been directed to pass. The tui^^
lines along which this development of the implied powers of the government has chiefly
progressed, have been those marked out by the three express powers of taxing ano
borrowing money, of regulating commerce, and of carrying on war." (Bryce, Anier.
Coram. I. pp. 370-1.)

§§ 226-228.]

POWERS OF THE PARLIAMENT. 653

" But the most important work was that done during the first half century, and
especially by Chief Justice Marshall during his long tenure of the presidencj- of the
Supreme Court (1801-1835). It is scarcely an exaggeration to call him, as an eminent
American jurist has done, a second maker of the Constitution. I will not borrow the
phrase whicli said of Augustus that he found Rome of brick and left it of marble,
because Marshall's function was not to change but to develop. The Constitution was,
«xcept of course as regards the political scheme of national government, which was
already established, rather a ground-plan than a city. It was, if I may pursue the
metaphor, mucli what the site of Washington was at the beginning of this century, a
symmetrical grounrl-plan for a great city, but with only some tall edifices standing here
and there among fields and woods. Marshall left it what Washington has now become,
a splendid and commodious capital within whose ample bounds there are still some
vacant spaces and some mean dwellings, but which, built up and beautified as it has
been by the taste and wealth of its rapidly -growing population, is worthy to be the
centre of a mighty nation. Marshall was, of course, only one among seven judges, but
his majestic intellect and the elevation of his character gave him such an ascendency,
that he found himself only once in a minoritv on an}- constitutional question." (Id.
374.)

" Had the Supreme Court been in those days possessed by the same spirit of
strictness and literality which the Judicial Committee of the Privy Council has recently
pplied to the British North America Act of 1867 (the Act which creates the Constitution
of the Canadian Federation), the United States Constitution would never have grown to
be what it now is. " (Id. p. 375. )

§ 227. "Power Vested by this Constitution."

Having drawn attention in a general manner to the scope of this sub-section and
illustrated it by authority, we now proceed to note several of its features which require
separate treatment. It must be observed that the sub-section comprehends matters
subsidiary and contributory to the execution of any power granted "by this Constitution. "
Jfow, there are five kinds of powers so granted: (1) Legislative power vested in the
Parliament, (2) Regulative power vested in either House of Parliament, (3) Executive
jower vested in the Federal Administration, (4) Judicial power vested in the Federal
Fudicature, (5) Ministerial mandator}' power vested in departments and officers.

§ 228. "Power Vested ... in the Parliament."

The power of the Parliament is, for the most part, defined in sec. 51. But in
ddition to that complex section, with its prolific drag-net sub-sec. xxxvi.. '• Until the
'arliament otherwise provides," there are numerous other sections in which important
Tants of power may be found. For example : —

Method of Choosisg SEyATORS — Parliament may make laws prescribing
(sec. 9).

RoT.ATiON' OF Senators. — Parliament may make laws for the vacating of the
places of senators, when the number of senators is increased or diminished
(see. 14).

Pri\tleges of Parliament. — Parliament may declare the powers, privileges

and immunities of the Senate and of the House of Representatives

(sec. 49).
Seat of Governmest. — Parliament may make laws respecting (sec. 52 — i.),

and may determine the site within certain limits (sec. 125).
Feder.\l Departsiexts. — Parliament may make laws for the regulation of the

public departments transferred to the Commonwealth (sec. 52 — ii.).
Feder-vl. Courts. — Parliament maj- create Federal Courts (sec. 71).
Judges of the High Court. — Parliament may prescribe the number of judges

of the High Court beyond a Chief Justice and two Justices (sec. 71).
Regulation of Appellate Jurisdiction. — Parliament may prescribe exceptions

and regulations, subject to which the High Court may hear appeals,
sec. 73).

654 COMMENTARIES ON THE CONSTITUTION. [Sec. 51 -xxxix^j

Additional Original Jurisdiction. — Parliament may confer additionat'

original jurisdiction on the High Court (sec. 76).
Power to Define Jurisdiction — Parliament may define the jurisdiction of

inferior Federal Courts, and invest State Courts with Federal jurisdic-
tion (sec. 77).
Actions Against Commonwealth and States. — Parliament may confer the

right to bring actions against the Commonwealth or against States

(sec. 78).
Distribution of Surplus. — After five years from the imposition of uniform

tariff Parliament may provide for the monthly paj'ment to the several

States of all surplus revenue on a fair basis (sec. 94).
Navigation, Shipping AND Railways.— Parliament may legislate concerning

naxagation, shipping, and State-owned railways so far as thej' affect

inter-state and foreign trade and commerce (sec. 98).
Inter-State Commission. — Parliament may define the adjudicatory and

administrative power of the Inter-State Commission with reference to

trade and commerce (sec. 101).
Preferences and Discriminations. - Parliament may with respect to trade

and commerce forbid preferences and discriminations subject to certain

conditions (sec. 102).
Taking Over Public Debts.— Parliament may take over from the States their

public debts (sec. 105).
State Inspection Laws. — Parliament may annul State inspection laws (sec. 112).
Custody of Offenders. — Parliament may make laws giving effect to the

mandate directed to the State by sec. 120 to make provision for the

detention of ofienders against the laws of the Commonwealth (sec. 120).
Admission of New States. — Parliament may admit or establish new States

(sec. 121).
Government of Territories.— Parliament may make laws for the government

of territory surrendered to it by any State or placed under its authority

b}' the Queen (sec. 122),
Alteration OF State Boundaries. — Parliament, subject to certain conditions

precedent, may alter the limits of a State (sec. 123).
Sub-section xxxix. authorizes the Parliament to make laws relating to matters
incidental to the execution of all these legislative powers, making them fully operative
and effective, and enforcing them by appropriate legal sanctions.

§ 229. " Powers Vested . . in Either House."

Each branch of the Federal Parliament is endowed with certain special powers,
necessary for its internal government, and for the conduct of its own business. As soon
as convenient, after the Senate first meets subsequent to a general election, it becomes
its duty to divide the senators chosen for each State into two classes, as nearly equal as
practicable, so as to provide for the order of their retirement in triennial batches (sec. 15).
Until the Parliament otherwise provides, any question respecting tlie qualification of a
senator or of a member of the House of Representatives, or respecting a vacancy in
either House of the Parliament, and any question of a disputed election to either House,
must be determined by the House in which the question arises (sec. 47). Each House of
the Parliament may make rules and orders with respect to —

(1.) The mode in which its powers, privileges, and immunities may be exercised

and upheld :
(2.) The order and conduct of its business and proceedings either separately or
jointly with the other House (sec. 50).

§§ 230-233.] POWERS OF THE PARLIAMENT. 655

Sub-section xxxix. authorizes the Parliament to make laws relating to mattere
incidental to the execution of these powers, some of them being regulative and others
being of a quasi-judicial character ; making them fully operative and effective, and
providing for their due enforcement by appropriate legal sanctions.

§ 230. "Powers Vested ... in the GoYernment-"

This means power vested in the central executive deparment of the Commonwealth.
The executive power of the Federal Government is vested in the Queen and is exercisable
by the (xovernor-General as the Queen's representative ; it extends to and includes the
execution and maintenance of the Constitution, and of the laws of the Commonwealth.
The Executive Government will, with reference to matters which pass to it by the
Constitution, have all the powers and functions which, at the establishment of the
Commonwealth, were with reference to such matters vested in the executive authorities
of the colonies (sec. 70). Sub-section xxxix. authorizes the Parliament to pass any laws
that may be necessary in order to develop, fortify, and give effect to these constitutional
declarations.

§ 231. " Power Vested ... in the Federal Judicature."

The judicial power of the Commonwealth is vested in a Federal High Court and i»
such other Courts as may be created (sec. 71). Sub-sec. xxxix. authorizes the Parliament
to pass any law necessary for the execution and maintenance of the judicial power. No
mention is made in the Constitution of the right of litigants, and other persons interested
in proceedings in the Federal Courts, to appear and be heard by Counsel learned in the
law ; but the grant of ancillarj' power covered by this sub-section will enable the
Parliament to legislate, or to authorize the High Court to make rules, respecting the
legal profession, its qualifications, privileges, and obligations in relation to Federal
Courts. It will also authorize the appointment of proper officers to preserve the records
and enforce the judgments, decrees, orders, and sentences of the Federal Courts.

§ 232. " Power Vested ... in any Department."

On the establishment of the Commonwealth the customs and excise department will
be transferred to it, whilst other departments will be taken over on dates to be
proclaimed. There is no section in the Constitution directly vesting power in any
department ; but the Parliament is empowered by sec. 52 — ii. to make laws with respect
to matters relating to any department of the public service, the control of which is
transferred to the Executive Government of the Commonwealth. Sub-sec. xxxix.
enlarges and reinforces the grant of power contained in sec. 52 — ii. ; so that when the
Parliament legislates concerning transferred departments, there will be no doubt as to
its ability to et^uip them with all the subsidiary powers necessary for their successful
and efficient operation.

.^ 233. "Power vested . . in any . . 0£Bcer."

Section 64 enables the Governor- General to appoint political officers to administer
-uch departments of State as may be established. Here is a bare grant of power " to
administer." Sub-section xxxix. comes to the aid of the grant and says that the
Parliament may make laws incidental to it and necessary to enable Ministers of State to
■ ffectively perform their administrative duties. Similarly by sec. 68 the Command-in-
' hief of the naval and military forces is vested in the Governor-General. Sub-sec.
X xxix. will enable the Parliament to grant such powers to the Commander-in-Chief as wiU
• liable him to efficiently perform the duties of that high office.

656 COMMENTARIES ON THE CONSTITUTION. [Sec. 52.

Exclusive powers of the Parliament.

52. The Parliament shall, subject to this Constitution,
have exclusive power^^* to make \sl\ys for the peace, order,
and good governraent^^^ of the Commonwealth with respect
to—

(i.) The seat of govern ment"'^^ of the Common-
wealth, and all places acquired'^^^ by the
Commonwealth for public purposes :
(ii.) Matters relating to any departments^ of the
public service the control of which is by this
Constitution transferred to the Executive
Government of the Commonwealth :
(iii.) Other matters^^^ declared by this Constitution
to be within the exclusive DOwer of the
Parliament.

United States. — To exercise exclusive legislation in all cases whatsoever, over such district
(not exceeding ten miles square) as may, by cession of particular States, and the
acceptance of Congress, become the seat of the Government of the United States, and to
exercise like authority over all places purchased by the consent of the Legislature of the
State in which the same shall be, for the erection of forts, magazines, arsenals, dock-
yards, and other needful buildings. — Const., Art. I., sec. 8, subs. 17.

Historical Note. — Clause 53 of the Commonwealth Bill of 1891 defined substan-
tially the same powers in less concise words. It also contained the sub-clause dealing
with the alien races within the Commonwealth, which now forms sub-sec. xxvi. of sec.
51. (Conv. Deb. , Syd., 1891, 701-4.) At the Adelaide session the clause was adopted
almost verbatim. (Conv. Deb., Adel., pp. 830-4.)

At the Melbourne session the sub-clause as to alien races was transferred to sec. 51.
The clause was then verbally amended. (Conv. Deb., Melb., pp. 256-62.) Drafting
amendments were made before the first report and after the fourth report.

§ 234. '' Exclusive Power."

This section purports to confer on the Federal Parliament exclusive power to
legislate concerning certain subjects. " Exclusive " in this section, as in the corres-
ponding sections of the British North America Act, 1867, means the sole or exclusive
right of the Federal Parliament, as opposed to the State Parliaments. (Per Hagarty,
CJ., in Regina v. College of Physicians, 44 Upper Can. Q.B. 576.) If sec. 51 is
•designed to enumerate powers which, for a time, may be concurrently exercised by the
Federal Parliament, whilst sec. 52 is supposed to specify powers exclusively vested in
the Federal Parliament, then the classification intended has not been strictly observed
in the allocation of subjects among these sections. There are several powers granted by
sec. 51 which, on their face, could never have been exercised by any State Parliament
and which are, ex necessitate, federal powers only, such as the poM ers to make laws in
respect of " borrowing money on the public credit of the Commonwealth ; " " the naval
and military defence of the Commonwealth;" "fisheries in Australian waters beyond
territorial limits ; " " the service and execution throughout the Commonwealth of State
process and judgments ; " "the relations of the Commonwealth with the islands of the
Pacific."

CoMMENCEMKNT OF ExcLUSiVENESS. — Questions may arise as to the time when the
character of exclusiveness attaches to any particular subject of legislation. In the case

§234.] POWERS OF THE PARLIAMENT. 657

of the powers mentioned above as being necessarily exclusive in their nature, exclusiveness
of course attaches from the moment when the federal power vests — that is, from the
establishment of the Commonwealth. But the powers conferred by this section cannot
all become exclusive immediately on the establishment of the Commonwealth. Power
over the seat of government cannot be exercised at all — much less become exclusive —
until its location has been determined by the Parliament ; and similarly power over
places acquired by the Commonwealth cannot be exercised — much less become exclusive
— until such places have been acquired. The question of the time at which the several
exclusive powers of the Parliament acquire the character of exclusiveness will be found
discussed under the headings of those powers.

Effect ox State Laws. — The gift to the Parliament of the exclusive power to
make laws in respect of certain subjects withdraws from the State legislatures all power
of making laws upon those subjects. From the moment when the exclusiveness attaches,
the power of the State Parliaments to legislate is gone. The question then arises — how
does this exclusiveness affect the laws of the States, in respect of those subjects,
passed before the exclusive federal power attached? Do they continue in existence
until superseded by federal legislation, or do they cease to have effect from the
moment when the Parliament that passed them ceased to have power ?

In the United States there was for many years much difference of opinion as to the
nature of an exclusive power. Hamilton (Federalist, Xo. 32) thought that until Congi-ess
had acted in pursuance of an exclusive authority, the States could legislate on the
subject. Chief Justice Marshall's opinion seems to have been that where Congress had
exclusive power over any subject, the States could not pass laws dealing with that
lubject as such ; but that State legislation upon a subject not exclusively delegated to
Congress might incidentally affect the exclusive area, so long as it did not conflict \vith
Mitual Federal legislation. (See Gibbons i'. Ogden, 9 Wheat, at p. 204 ; Lewis, Federal
Power over Commerce, p. 39.) Thus in Chief Justice Marshall's view, the federal power
jver inter-state commerce was exclusive ; but this, though it preventetl the States from
egislating for the purpose of affecting such commerce, did not invalidate a State law
which flowed from an acknowledged power of the State, but which incidentallj* affected
jommerce. " Commerce, as commerce, could not be regulated by the States if the
power was exclusively in Congress ; but, except in case of an actual conflict, commerce
night in effect be regulated, or as we have chosen to call it, 'affected,' by a law passed
jy a State for the purpose of providing for the health or morals of her citizens." (Lewis,
?ed. Power over Commerce, p. 42.) A third view of the exclusive power was that
ulopted by Mr. Justice Story, that — the commerce power being taken to be indivisible
ukd exclusive — the States were not only unable to regulate commerce as commerce, but
vere unable, even in the exercise of their acknowledged police powers, to pass a law
.ffecting commerce. (New York v. Miln, 11 Pet. p. 132.)

The third view of the nature of an exclusive power was that most generally accepted,
nd it appears to have been thought that it involved the conclusion that a gift of
xclusive power to the Union would not only prevent State legislation for the future,
>ut would sweep awa}- State legislation existing at the time of the Union. In Cooley v.
*ort Wardens, 12 How. 299, this was apparently assumed by the court, though the
"oint was not in issue. The assumption was that when the legislative power lapsed,
jiWB alreadj- made in pursuance of that power lapsed also.

The Constitution of the Commonwealth, however, is explicit where the American

ionstitntion was vague. The distinction Ijetween State powers and State laws is

pressly drawn (sees. 107, 108), and it seems clear that while powers which are

kclnsively vested in the Federal Parliament are, from the moment of such vesting,

ken away from the States, laws of the States existing at that moment continue in

ce " subject to the Constitution." That is to say, such laws, so far as they are not

onsistent with some provision of the Constitution itself, will continue in force until

l^erseded by federal legislation. Tliis is the view which was taken throughout the

■!oi
■xc

658 COMMENTARIES ON THE CONSTITUTION. [Sec. 52.

Convention (see especially Conv. Deb., Melb., pp. 227-257), and it is emphasized in sec.
90 ; where, in addition to providing that on a certain event the power to impose customs
and excise duties and to grant bounties shall become exclusive, it is thought necessary
to declare expressly that on that event all State laws imposing such duties or offering
bounties shall cease to have effect. In this section there is no such provision.

Care must, however, be taken to distinguish between powers which are exclusive
from an express gift to the Federal Parliament of "exclusive power to make laws," and
powers which are exclusive because anj' exercise of those powers by the States is
expressly, or by necessary implication, prohibited. The provisions, for instance, that a
State shall not raise or maintain any naval or military force, or impose a tax on property
of the Commonwealth, or coin money, prohibit not only State legislation, but also State
administration. A State will not bo able, under cover of its existing law, to perform
executive acts which infringe these prohibitions ; and existing laws which purport to
give the State such power will, for all practical purposes, cease to have effect. (See
Notes to sec. lOS.)

§ 235. " Peace, Order and Good Government."

It has been already noted in connection with sec. 51 that the words " for the peace,
order, and good government of the Commonwealth" do not in anyway expand, amplify,
or contract the grant of power, nor will they give jurisdiction to the Federal Courts to
enquire whether a particular law does, in their opinion, tend to promote peace, or order,
or good government. (See Note, § 161, supra).

§ 236. " The Seat of Government."

Sub-section i. gives the Federal Parliament exclusive authority to make laws with
respect to the regulation and control of the seat of Federal Government. The Parliament
will not, however, be able to exercise this power until the seat of (government is vested
in the Commonwealth under the provisions of section 125. By sec. 125 the seat of
Government must be determined by the Parliament ; it must be within territory which
shall have been granted to or acquired by the Commonwealth ; it must be vested in and
belong to the Commonwealth ; it must be in the State of New South Wales, and be
distant not less than 100 miles from Sydney. Such territory must contain an area of not
less than 100 square miles, and such portion thereof as consists of Crown lands must be
granted to the Commonwealth without any payment therefor. Within this territory,
the State out of which it has been carved will cease to have even local jurisdiction ; t!ie
Parliament of the Commonwealth alone will have exclusive power to make laws for its
municipal and general government. As to the question of the representation of this
territory in the Federal Parliament, see Mote, § 473, infra.

The corresponding provision in tlie Constitution of the United States (Art. I.
sec. viii. sub-s. 17) empowers Congress " to exercise exclusive legislation, in all cases
whatsoever, over such district (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of government of the
United States."

Under this clause, CoTigress may constitute the District of Columbia a Iwdy
corporate for municipal purposes, but can only authorize it to exercise municipal power.
(Stoutenburgh v. Hennick, 129 U.S. 141. Baker, Annot. Const, p. 54.)

Within the District of Columbia, and the other places purchased and used for
federal purposes, the national and municipal powers of government are united in the
government of the Union. These are the only cases in which all the powers of govern-
ment are so uniteil. (Pollard v. Hagau, 3 How. 212. Id. p. .54.)

This power is conferred on Congress as the national legislature of the Union. In no
other character can it be exercised. (Cohens v. Virginia, 6 Wheat. 424. Id. p. 65.)

This power includes the power to tax ; hence Congress may levy a direct tax on the
District of Columbia, in proportion to the census directed to be taken by the Constitu-
tion. (Loughborough v. Blake, 5 Wheat. 317. Id.)

§§ 236-2:17.] POWERS OF THE PARLIAMENT. 659

C!oarts established by federal legislatiou for the District of Columbia may issue all
processes necessary to carry their orders into effect, and such process may be executed
within any State. " (United States r. Williams, 4 Cranch, C.C. 393. Id.)

Under this power Congress may authorize the municipal authorities of the city of
Washington to provide for paving the streets of the cit^' and to levy assessments on
•butting property to pay for the same. (NVillard r. Fresbury, 14 Wall. 676. Id.)

An inhabitant of the District of Columbia, who there has his permanent abode, is
not a citizen of a State. (Cissel i*. McDonald, 16 Blatch. 150. Id.)

Tl»e sovereign power of the District of Columbia is lodged in the government of the
United ."^tates and not in the corporation of the District. But the District municipal
corporation is a person, and subject to suit, as any other municipality, and cannot claim
exemption from the provisions of a statute of limitations on the ground that it is a
department of the government of the United States. (Metropolitan R.R. Co. v.
Difltrict of Columbia, 132 U.S. 1. Id p. 56.)

" The principles laid down by the Supreme Court, that the exclusive legislative
power involves exclusive jurisdiction, and that Congress is not the local legislature of
the District, but possesses, as the national legislature, exclusive legislative power over
it, have never been seriously assailed. The power of gi\-ing the city of Washington
its o^vu municipal government has therefore always been regarded as self-evident. On
the contrary, the constitutionality of organizing the District into a territory, like the
ordinary tenitories, has been disputed, because a partial delegation of the legislative
power is inadmissible, on account of the expressly-stated exclusiveness of this power.
It is, however, generally admitted that ' exclusive ' does not mean the same as
•unlimited.' Congress cannot grant the inhabitants of the District any rights which,
according to the general political nature of the Union, belong only to the population of
the States — such, for instance, as representation in Congress, participation in the
Presidential election, kc. And just as little can Congi-ess rule the District without
regard to the provisions of the so-called ' bill of rights.' But what Congress cannot do
in regard to the District in matters not invohang the rights of the States as such, that
it also cannot do in reference to anj'body or anything." (Von Hoist's Constitutional
w of the United States, p. 1 73. )

" Congress has tried all sorts of experiments as to the local government of the
District, some of them with very unfortunate results. At present there are three
commissioners at the head of the administration of the District. The inhabitants
cannot well grieve over the loss of their short-lived enjoyment of a limited autonomy,
for while their rights have again become more limited (necessarily so under the present
system), their interests are better cared for. They must bear the same hardens as the
rest of the people, have the same taxes to pay, and are bound to serve in the militia. But
in spite of their fxiU citizenship, political rights are withheld from them solely because
they have their domicile at the seat of government. This is an anomaly that has never
been justified theoretically, and its necessity — not to say its expediency — has become at
least doubtful since the power of the Federal C4ovemment has become so firmly estab-
ished and so far beyond the power of each separate State. This anomaly, moreover,
will always remain a thorn in the fle.sh of the American disciples of the doctrine of
aatural political rights. The creation of the District of Columbia is one of those steps
ff'hich it is scarcely possible to retrace, even if the circumstances, which at one time
nade them seem wise, have given room to a completely changed state of things." {Id.

" When the grant of an express power to incorporate a bank was proposed [in the
American Federal Convention] Gouvemeur Morris opposed it, obser\-ing that it was
sxtremely doubtful whether the Constitution they were framing could ever be passed at
ill by the people of America ; that to give it its best chance, however, they should make
t aa palatable as possible and put nothing into it not very essential which might raise
ip enemies. (Jefferson's Ana. Works, 1st ed. voL ix. p. 191.) So Gouvemeur Morris
]>pposed the inclusion of an express grant of power to establish a university, saying, ' It
s not necessary. The exclusive power at the seat of Government ^\"ill reach the
»bject.' " (Madison Papers : Elliot's Debates, 2nd ed. vol. v. p. 544. Foster. Const. I.
\x 42.)

237. " And all Places Acquired by the Commonwealth."

The right of eminent domain vested in the Commonwealth, under sec. 51 — xxxi.

■■nd sec. 85, enables the Parliament to acquire private and pro\-incial property, including

ad, for Federal purposes. Sec. 122 enables the Parliament to accept from a State or

the Queen, or otherwise acquire, territorj' to be governed as Federal domain.

jperty and ten-itorj- so acquired may become " places acquired by the Commonwealth

660 COMMENTARIES ON THE CONSTITUTION. [Sec. 62.

for public purposes " under this sub-section, and hence places in which the Parliament
has exclusive jurisdiction. Where a murder was committed within a fort, purchased by
the United States from a State, it was held that the Federal Circuit Court had jurisdiction
over the offence, notwithstanding a reservation by the State, in the act of cession, that
the State should execute, within the fort, the civil and criminal processes issuing under
State authority, (United States v. Cornell, 2 Mason, 91. Baker, Annot. Const, p. 55.)

§ 238. " Matters Relating to any Department."

The Federal Parliament has exclusive power to make laws with respect to " matters
relating to any department " of the public service transferred to the Commonwealth.

A consideration of the expression, " matters relating to any department," suggests
that it does not cover the wl^ole field of legislation relating to the subject-matter
appropriate to the department. The exclusive power to make laws " with respect to
matters relating to the department ' of quarantine does not cover the same area as the
power to make laws " with respect to quarantine ; " and so with the other departments.
There may be laws relating to a subject of legislation, but not relating to the corres-
ponding department of the public service. A department of the public service is a
branch of the Executive Government, not a segment of the legislative power ; and what
this sub-section gives to the Federal Parliament is exclusive power to control executive
departments, not exclusive power to occupy legislative areas.

Matters " relating to any department " would clearly include all matters relating
to the organization, equipment, working, and management of the department, the
appointment, classification, and dismissal of officers, and all the general body of law
relating to its conduct and administration ; it would cover all the machinery, procedure,
and regulation, without which a public department would be impotent ; but it does not
seem to cover the whole of the principal and substantive law dealing with the matters
conti'olled or controllable by the department. With respect to the whole of that field,
of course, the Federal Parliament has " power to make laws " under sec 51, and it may,
in the exercise of that power, occupy the whole field, and so exclude every particle of
the concurrent jurisdiction of the States ; but it is not by this section given "exclusive
power " over the whole of that field.

Thus the gift of exclusive power to make laws with respect to matters relating to
the departments transferred by sec. 69 —such as those of posts, telegraphs, and
telephones, light-houses, light-ships, beacons and buoys, and quarantine — does not
entirely remove from the States the concurrent power to make laws with respect to
"postal, telegraphic, telephonic, and other like services " (sec. 51— x.); "light-houses,
light-ships, beacons, and buoys" (sec. 51 — vii.); and "quarantine" (sec. 51— ix.). With
respect to matters relating to the corresponding executive departments, the federal
power is exclusive, but otherwise— so far as this section is concerned — concurrent
legislative power of the States is not affected. As to the time when the federal control
over " custom and excise " becomes exclusive, see sec. 90; as to "naval and military
defence" see sec. 114 ; and as to " coinage" see sec. 115.

Apart, however, from the exclusiveness enforced by this section or flowing from the
prohibitions contained in sees. 90, 114, and 115, the rule that the States may not pMffl
laws inconsistent with the laws of the Commonwealth will, from the outset, give to thi^i
Federal Parliament, in connection with these departments, a largo measui'e of exclusive
power. Thus it would be inconsistent with tlie transfer of the postal department to the
Commonwealth if a State were afterwards to establish a competing postal service, or
authorize a corporation to do so. Nor will it be possible for a State after the transfer of
departments to the Federal Government to issue legislative mandates to those depart-
ments. But though the States are excluded from the field occupied by the Federal
Government, they are free to fill up nooks and crannies left unoccupied. It is easy to
conceive of cases in which the States may make and execute laws auxiliary or supple-
mentary to, and not inconsistent with, the laws administered by the transferred

§§238-239] POWERS OF THE PARLIAMENT. 661

■ lepartments. Thus the State Parliaments could clearly, if thought necessary, grant
ibsidies in aid of particular federal services ; afford facilities for the carriage of federal
nails, and authorize the Executive of the State to contract with the Federal Government
>r such carriage ; buoy and light harbours and channels not buoyed or lighted by the
Federal Government ; and so forth. These are " laws with respect to " postal services,
&c., but they are not laws with respect to matters relating to the departments transferred ;
and therefore they are — so far as they are not inconsistent with any federal law —
within the legitimate concurrent power of the States.

The next question is, when docs this exclusiveness, with regard to the transferred

' lepartments, arise ? It would seem that the Federal Parliament is intended to have

xclusive power over matters relating to transferred departments, as soon as they are

transferred." It may, however, be argued that the words " the control of which is by

lis Constitution transferred" are merely intended to identify the departments enumerated

111 sec. 69, and not to define the time at which the character of exclusiveness attaches ;

and that consequently, though the administration of the departments is not transferred

till a later date, the power of legislation in respect of them is exclusively vested in the

Federal Parliament from the establishment of the Commonwealth. As regards the

lepartments of customs and excise, this question does not arise, because they become

ransferred to the Commonwealth on its establishment.

The extent of the exclusive power over the transferred departments, and the time
at which the exclusiveness arises, having been discussed, the effect of the exclusiveness
may be gathered from the preceding note (" Exclusive Power," § 234, supra). The
State Parliaments will have no power, from the moment when the federal power
i lecoraes exclusive, to pass laws in respect of matters relating to the transferred depart-
ments. It does not follow, however, that those departments wiU be at once emancipated
from the control of the laws of the States existing at that date. On the contrary, until
those laws have been superseded by federal legislation, the departments transferred
from each State will be conducted by the Federal Government in accordance with the
• xisting laws of the State — laws which the State Parliament is thenceforth powerless to
alter or repeal, but which may be supei*seded at any moment by federal legislation.

With respect to the officers and staff of the transferred departments, the power of
the Federal Parliament to make laws in respect of matters relating to the departments
is subject to an important limitation. By sec. 84 every officer of a transferred depart-
ment, who is retained in the ser\-ice of the Commonwealth, preser^■es all his existing and
accruing rights ; and of those rights he cannot be deprived, even by the Federal Parlia-
ment. (See Note, § 356, infra).

§ 239. "Other Matters."

The Federal Parliament has exclusive jurisdiction to deal with other matters
declared by the Constitution to be within its exclusive power. The only other matters
•xpressly declared by the Constitution to be within this exclusive power, are (1) those
comprehended in sec. 90, which provides that on the imposition of uniform duties of
' ustoms the power of the Parliament to impose duties of customs and excise, and to
u'rant bounties on the production or export of goods, shall become exclusive ; and (2)
that contained in sec. Ill, which provides that any part of a State surrendered by the
! Parhament of the State and accepted by the Commonwealth shall become subject to the
I exclusive jurisdiction of the Commonwealth. (See Notes, §§ 381, 452, infra.)

In addition to those matters " declared by this Constitution " to be exclusively
vested in the Federal Parliament, there are others which, though not, ex vi termini,
" declared" to be within its exclusive power, are by necessary implication and intendment
withdrawn from the States and vested solely in the Federal Parliament. It is a rule of
construction that there may be an exclusive delegation in three cases, (1) where the
Constitution, in express words, grants an exclusive authority to the Union, (2} where it

662 COMMENTARIES ON THE CONSTITUTION. [See. 53.

grants in one instance an authority to the Union, and in another prohibits the States
from exercising a like authority, and (3) where it grants an authority to the Union, to
which a similar authority in the States would be absolutely and totally contradictory
and repugnant. (Hamilton, in the Federalist, No. 32.) Thusbj^ sec. 51 — vi., the Federal
Parliament has power to make laws with respect to the naval and military defence of
the Commonwealth and of the several States, whilst by sec. 114 the States may not,
without the consent of the Federal Parliament, raise or maintain any naval or military
force ; the combined operation of these two sections being to give the Federal Parliament
exclusive authority with respect to naval and military matters. Again, by sec. 51 — xii.,
the Federal Parliament has power to make laws with respect to currency, coinage, and
legal tender, whilst by sec. 115 a State is forbidden to coin money or make anything but
gold and silver coin a legal tender in payment of debts ; the combined operation of
these two sections being to give the Federal Parliament exclusive power with respect to
coinage and with respect to legal tender in anything other than gold and silver coin.

Powers of the Houses in respect of legislation.

53. Proposed lavvs-*° appropriating revenue or moneys^S
or imposing taxation^*^, shall not originate in the Senate'*^
But a proposed law shall not be taken^** to appropriate revenue
or moneys, or to impose taxation, by reason only of its
containing provisions for the imposition or appropriation of
fines or other pecuniary penalties^*^, or for the demand or
payment or appropriation of fees for licences"^^, or fees for
services^*^ under the proposed law.

The Senate may not amend proposed laws imposing
taxation, or proposed laws appropriating revenue or moneys
for the ordinary annual services of the Government. H

The Senate may not amend^^ any proposed law so as to
increase any proposed charge or burden on the people"^*^

The Senate may at any stage return to the House of
Representatives"^'' any proposed law which the Senate may
not amend, requesting, by message, the omission or amendment
of any items or provisions therein And the House of
Representatives may, if it thinks fit, make any of such
omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have
equal power^*^ with the House of Representatives in respect
of all proposed laws.

U-viTED States.— All Bills for raising revenue shall originate in the House of Representative*,
but the Senate may propose or concur with amendments as on other Bills.— Const. Art. 1
sec. vii. sub-8. 1.

Canada.— Bills for appropriating any part of the public revenue, or for imposing any tax or
impost, shali originate iu the House of Commons.— B.N.A. Act, 1867, sec. 53

,< 240.] POWERS OF THE PARLIAMENT. 663

H1.STOKICAJ. Note. — In the Sydney Convention of 1891, the first debate on the
power of the two Houses with regard to Money Bills took place on the discussion of Sir
Henry Parkes' resolutions. The resolutions gave to the House of Representatives " the
sole power of originating and amendiug all bills appropriating revenue or imposing
taxation." The result of the debate was that the words " and amending" were omitted,
in order to leave the question open ; and the detailed decision of the question stood over.
iConv. Deb., Syd., 1891, pp. 375-46.S ; supra, pp. 125-8.)

The Bill brought up by the Drafting Committee embodied the " compromise of
1891." The Senate was given equal power with the House of Representatives, except
that (I) Appropriation Bills and Taxation Bills were to originate in the House of
Representatives ; (2) the Senate was forbidden to amend Taxation Bills and Bills
appropriating the necessary supplies for the ordinary annual services of Government, or
to amend any Bill so as to increase any proposed charge or burden on the people. But
the Senate might suggest amendments in Bills which it might not amend. (Pp. 131-2,
•ntpra. )

In Committee, an amendment by Mr. Wrixon to restrict the sole power of
originating Appropriation Bills to Bills " appropriating the necessary supplies for the
ordinary annual services of the Government " was negatived. An amendment h\ Mr.
i>aker, to give the Senate equal power with the House of Representatives in respect of
dl bills, was negatived after a long debate by 22 votes to 16. An amendment by Mr.
McMillan, giving the Senate power to amend a Taxation Bill once, but not a second
rime, was negatived, and an amendment by Mr. Wrixon, providing that suggestions by
I he Senate, if rejected by the House of Representatives, might be dealt with at a joint
sitting, was also negatived. (Conv. Deb., Syd., 1891, pp. 704-64; supra, pp. 138-9.)

At the Adelaide session, the " compromise of 1891 " was departed from by the
Constitutional Committee, and the Bill as submitted to the Convention restricted the
<ole originating power of the House of Representatives to bills " having for their main
ibject " the appropriation of revenue or the imposition of taxation ; and contained no
prohibition against the amendment of Money BiUs by the Senate (p. 169, supra). In
Committee of the whole, an amendment by Sir George Turner requiring that all
Appropriation Bills should originate in the House of Representatives was negatived by 26
votes to 22. An amendment b}' Mr. Barton, to add "or moneys" after "revenue," so
is to include loan bills, was carried. An amendment by Mr. Reid, to prevent the
amendment of taxation bills by the Senate, was agreed to after a long debate by 25 votes
to 23. (Conv. Deb., Adel., pp. 469-575, 608-11, 1199-1200 ; supra, pp. 172-3.)

At the Sydney session, a suggestion by both Houses of the Xew South Wales
I'arliament, to omit the words "ha\"ing for their main object," was agreed to, and in
us place a suggestion of the House of Assembly of Tasmania, to except bills which only
incidental!}- involved appropriation, was adopted. A suggestion by the Legislative
Council of Western Australia, to allow the Senate to amend Money Bills, was again
defeated, after a long debate, by 28 votes to 19. (Conv. Deb., Syd., 1897, pp. 467-539 ;
supra, p. 189.)

At the Melbourne session, Mr. Higgins moved, in the ' ' suggestion " paragraph, to
omit the words "at any stage" and substitute "once." This Avas negatived. Mr.
Reid moved to omit the paragraph altogether, and this also was negatived. (Conv.
Deb., Melb., pp. 1996-9.) Drafting amendments were made before the first report and
after the fourth report. (Id. 2450.)

§ 240. "Proposed Laws.**

In the Draft Bill of 1891 the opening words of this important section were " Laws
appropriating." In the Bill, as recommended by the Constitutional Committee to the
Adelaide Convention, 1897, the phrase was " proposed laws."

Now, the first question to be considered is the difference between " bills," "laws,"
and " proposed laws."

664 COMMENTARIES ON THE CONSTITUTION. [Sec. 53.

"A law" is a legislative measure which has been passed by both Houses of the
Parliament, received the Royal assent, and is in actual operation. " A proposed law'
is a bill or measure which is in course of progress through the legislature. " A bill" i^
a proposed law.

In the section under review, and its associated section .55, there is a clear-cut
distinction between "laws" and "proposed laws," and this distinction may lead to
important consequences in interpretation. The corresponding provisions in the Consti-
tution of the United States make no such distinction, nor do those of the Canadian
Constitution.

When the Federal Constitution directs that a proposed law shall be initiated, and
passed, in a certain manner, that method of initiation or passage involves merely a
question of order, regularity, or procedure, as between the two Houses of Parliament,
inter se, or as between the Parliament and the Crown For example, under this section
a proposed law, or in other words, a bill appropriating money or imposing taxation,
" shall not " originate in the Senate. No prohibition could be couched in stronger terms.
Suppose that a money bill violating this prohibition were introduced into the Senate.
A point of order could be at once taken that it was not within the competence of the
Senate to entertain it. It would be the duty of the President of the Senate to rule
such a bill out of order. But suppose that the point of order were not taken, or if taken
were not sustained by the President, and that the bill were passed by the Senate and
transmitted to the House of Representatives. Here again, the point of order could, and
no doubt would, be taken. It would in all probability be upheld by the Speaker. It is,
however, conceivable that the bill might slip through, without the point of order being
taken, or that the Speaker might decide that the bill did not come within the consti-
tutional prohibition. Suppose that the bill has run the gauntlet of points of order and
objections in both houses, and has at last received the royal assent and become law.
Could its validity be then challenged in the High Court ? According to the view of
the Convention it appears that it could not. The expression, "proposed laws," would
preclude the Courts from entering into the inquiry whether the law had originated in
the proper Chamber. The question of order and procedure would only be open to
debate in the Houses of Parliament, whilst it was in the proposal stage, and not after
that stage was passed, and it had received the final sanction of the Crown, whereby it
ceased to be a "proposed law" and became a " law." But it was thought that if the
expression used in the Bill of 1891 — " laws appropriating," &c. — had been reproduced,
the Courts would have been able to examine the history and constitutionality of the
law «,nd ascertain whether it had been initiated in accordance with the mandatory
requirements of the Constitution.

At the Adelaide sittings of the Convention an attempt was made to alter the draft
of the section, as submitted by the Constitutional Committee, by striking out the word
" proposed " and making the phrase read "laws appropriating." In support of this
suggestion Mr. R. E. O'Connor said there was a very strong reason why we should have
"laws "in this part of the Bill, to indicate that the law must comply with certain
conditions, and that if it did not comply with those conditions it would be unconsti-
tutional, and must be set aside. He thought it most essential that the powers of the
two houses with respect to money bills should be made matters of constitutional objection,
and not mere matters of order. To this it was replied that it would be a calamity if.
after an appropriation bill or a tax bill had been passed by both Houses and assented to
by the Crown, it could be impeached in the Law Courts for an irregularity not appearing
on its face, and if its validity could be impugned for some informality in its inception.
(Conv. Deb , Adel., p. 472.) It was not at the time perceived by the opponents of
Mr. O'Connor's view that it was calculated to strengthen the originating power of the
House of Representatives, by rendering open to legal attack any " law" initiated in the
Senate and involving appropriation or taxation. But the argument prevailed, and
Mr. O'Connor yielded to it, that all such matters should be treated as political questions

s,N 240-241.] POWERS OF THE PARLIAMENT. 665

to be settled by the two Houses, and not open to examination in the Federal Courts.
"The question whether a bill should be originated in the House of Representatives
. . . was one not intended to come before the Courts afterwards, but to be settled
by the Houses themselves." (Per Mr. E. Barton, Conv. Deb., Adel., p. 473.)

As already stated, the use of the expression " proposed laws " was, in the opinion of
the Convention, sufficient to deprive the Federal Courts of power to examine such
questions as the origination of Money BiUs. A distinguished American jurist is, however,
of opinion that the Supreme Court of the United States could examine and declare null
and void a bill for raising revenue originating in the Senate. Art. 1, sec. vii. sub-s. I,
above quoted, requires that all bills for raising revenue shall originate in the House
of Representatives ; referring to which Di". Burgess says : —

"The vesting of the power to originate tax levies exclusively in the more popular
branch of the legislative department of the government is not a defence against the whole
government, and therefore is not, strictly speaking, an immunity. Its advantage to the
security of private property springs from the fact that the people, i.e., the suffrage-
holders, have a more direct influence over this branch of the government than any other,
rather than from any restriction imposed by the Constitution upon the government as to
the extent of its power of taxation. The real immunity is to be found in the negative
side of this pro\ision, viz. , that the power of taxation shall not be exercised at all in any
other way than as thus prescribed. The House of Representatives itself has not the
power, either by separate resolution or by joining with the Senate and the President in a
law to that effect, to permit the Senate, or any other branch of the government, to
originate a bill for the raising of revenue ; and I think it is at least a question whether,
should the Senate or the President undertake to assume this power, and the House
acquiesce in the usurpation, the individual may not defend himself in the Courts of the
United States against the collection from him of any tax so le\ied, on the ground of its
nnconstitutionality. It does not seem to me that the judicial power could excuse itself
from taking jurisdiction under the plea that this is a political question. As a general
principle, the distribution of powers by the Constitution between the different departments
of the government is a political question ; but in this particular instance private property
would be directly involved, and the United States Courts have never declined jurisdiction
where private property was immediately affected, on the ground that the question was
political." (Burgess Political Sc. i. pp., 196-7.)

A strong argument against the application of this dictum to the interpretation of the
first paragraph of sec. 53 of the Constitution of the Commonwealth will be found in the
conspicuous distinction drawn between the term " proposed laws " used in sections 53 and
64, and " laws " in sec. 55. The importance of the difference between " proposed laws "
and " laws " will be found further illustrated in our notes to sec. 55.

§ 241. *' Appropriating Revenue or Moneys."

An appropriation of revenue or moneys is the setting apart, assigning, or appUnng
o a particular use or to a particular person a certain sum of money. It is an application
'I money already raised or an authority to spend money already available. Public
• venue is generally paid into a consolidated fund. Into this fund flows every stream of
he revenue, the proceeds of taxation, fees, penalties, and other sums of money received
■v the treasury on behalf of the Crown. From this fund proceed the supplies necessary
■)r carrjTng on the various branches of the public service. (May's Pari. Prac. 10th ed.
)58. ) In addition to the consolidated fund there may be large sums of money raised on
-•>an, called " loan money." Of this a separate account is kept as not coming under the
reading of revenue. In this section, however, the words " revenue or money" are wide
nough to cover loan money as well as revenue. This revenue or money can onlv be
ssued by ^-irtue of a legal appropriation, that is by an Act of Parliament (sec 83). The
portion of the section now iinder re\-iew determines in which branch of the Federal
Parliament proposed laws appropriating such revenue or money ma\- be introduced.

" Statutory pro^•ision must be made by Parliament, during each financial year, to
ensiire that all the money therein raised for the service of the Crown be applied to a
distinct use, either wholly or partly, within the current financial year : as the proceeds of
taxation should not be reserved for accumulation, pending the decision of Parliament, or
otherwise left without specific appropriation." (Mays Pari. Prac. 10th ed. p. 557.)

€66 COMMENTARIES ON THE CONSTITUTIOK [Sec. 53.

The present form of the nominative part of the section should be carefully scanned
and studied. As submitted to the Convention by tlie Constitutional Committee, the
section commenced " proposed laws having for their main object the appropriation of
any part of the public money or revenue," &c. An attempt by the representatives of the
larger colonies to strike out those words and insert " proposed laws appropriating," was
defeated by 26 votes to 24. (Conv. Deb., Adel., p. 479.) At the Sydney sitting of the
Convention the Legislative Council and Legislative Assembly of New South Wales
proposed to omit the words " having for their main object," with a view to insert " for."
The Legislative Assembly of Victoria proposed to omit the words, "having for their
main object the appropriation of," with a view to insert the word " appropriating," and
the Legislative Assembly of Tasmania proposed to omit the word "main." Mr. G. H.
Reid proposed an amendment for the omission of the words " having for their main
object," with a view to the insertion of the word " appropriating." This was carried,
on the understanding that the following addendum, recommended by the Legislative
Assembly of Tasmania, should be added to the section: "But a proposed law which
provides for the imposition and appropriation of fines or other pecuniary penalties, or
for the demand and paj'ment and appropriation of fees for licenses, or for services, and
does not otherwise impose any tax or appropriate any part of the public revenue, may
originate either in the House of Representatives or in the Senate." The section referring
to the origination of Money Bills, as it now stands, omitting the word " for," which
appears in the Constitutions of the United States and of Canada, gives the House of
Representatives a larger grant of exclusive originating power than that possessed by the
American House of Representatives or by the Canadian House of Commons. At the
same time, several important and useful exceptions to the rigid rule of exclusive financial
origination are clearly expressed in the latter part of the paragraph.

Extent of Appropriating Power. — The power of the Federal Parliament to .
appropriate and authorize the expenditure of revenue or money, is not, by this sectiou,
restricted to any particular or general purpose. No doubt the appiopriating and
spending power is intended to be confined to the purposes in respect of which the
Parliament can make laws. Such a limitation, however, is not expressed ; if it exists at .
all it is implied. If such be the case could tlie High Court restrain the appropriation
and expenditure of Federal money for a purpose not within the powers of the Parliament?
Some light may be thrown on the point by the cases of United States v. Realty Co., and
United States v. Gay (163 U.S. 427). In these cases it was held, per Peckham, J., that
it was within the constitutional power of Congress to determine whether claims upon the
public treasury are founded upon moral and honourable obligations, and upon principles
of right and justice ; and that having decided such questions in the affirmative, and
having appropriated public money for the payment of such claims, its decisions can
rarely, if ever, be the subject of review by the judicial branch of the Government.

§ 242. "Or Imposing Taxation."

Proposed laws imposing taxation are essentially different from proposed laws
appropriating revenue. By one law money is raised and by the other law money already
raised is made available for expenditure.

'• The action taken by the House of Commons, upon the demand of aid and supply
for the public, service, made by the speech from the throne, is the appointment, pursuant
to standing order No. 54, of those committees of the whole House, which are known as
the Committee of supply and the Committee of ways and means. . . . The Committee of
ways and means provides the public income raised by the imposition of annual taxation.
(May's Pari. Prac. 10th ed. pp. 554-555. )

" Proposed laws , . imposing taxation " are intended to legalize charges or burdens
on the people; as for instance bills imposing customs and excise duties; bills imposing
stamp duties ; bills imposing succession duties ; bills imposing taxes on property. Jsow,
the provision, "proposed laws . . imposing taxation shall not originate in the Senate,
limits the authority of one of the Federal Chambers and confers a monopoly of originating
power on the other ; therefore it will be strictly construed.

,X--

,5 -243-245.] POWERS OF THE PARLIAMENT. 667

§ 243. " Shall Not Originate in the Senate."

The pro\'ision, that appropriation and tax bills shall not originate in the Senate,
necessarily confers the monopoly of financial origination on the House of Representatives.
This part of the section crystallizes into a statutory form what has been the practice
under the British Constitution for over two hundred and twenty years. On 3rd .June,
1678, the House of Commons resolved — That all aids and supplies, and aids to His
Majesty in Parliament, are the sole gift of the Commons ; and all bills for the granting
of any such aids and supplies ought to begin with the Commons ; and that it is the
undoubted and sole right of the Commons to direct, limit, and appoint in such bills the
ends, purposes, considerations, conditions, limitations, and qualifications of such grants,
which ought not to be changed or altered by the House of Lords (May's Pari. Prac.
10th ed. 542. ) By usage based on the foregoing resolution, the House of Lords has
been excluded from the power of initiating bills dealing with public expenditure and
revenue, and also from initiating public bills which would create a charge upon the
people by the imposition of local and other rates, or which deal with the administration
or employment of those charges. Bills which thus infringe the privileges of the
Commons, when received from the Lords, are either laid aside or postponed for six
months. ( May's ParL Prac. 10th ed. 542. ) This exclusive power of initiating money
Bills is one of the most valued privileges of the House of Commons, and one of its vital
sources of constitutional strength and supremacy.

§ 244. " But a Proposed Law Shall Not be Taken."

This part of the section embraces a compromise, with reference to the originating
power, which was recommended by the Legislative Assembly of Tasmania. The
Tasmanian amendment, drafted by the Hon. Inglis Clark, Attorney-General of that
colony (now Mr. Justice Clark), was founded on the practice recognized by the House of
Commons, and thus explained by May : —

" The claim to exclusive legislation over charges imposed upon the people was

formerly extended by the Commons to the imposition of fees and pecuniary penalties,

and to provisions which touched the mode of suing for fees and penalties, and

to their application when recovered ; and they denied to the Lords the power of

dealing with these matters. The rigid enforcement of this claim proved inconvenient ;

and in 1849, the Commons adopted a standing order, leased on a resolution passed in

1831, which gave the Lords power to deal, by bill or amendment, with pecuniary

penalties, forfeitures, or fees, when the object of their legislation was to secure the

execution of an Act ; pro\ided that the fees were not payable into the exchequer, or in

aid of the public revenue ; and when the bill shall be a private bill for a local or personal

t. And the Commons also agreed to another standing order, whereby they surrendered

leir pri\nleges so far as they affected private and provisional order bills sent down from

le House of Lords, which refer to tolls and charges for services performed, not being

1 the nature of a tax. or which refer to rates assessed and levied by local authorities

■r local purposes. The practical result of these standing orders is a waiver by the

ommous of their privileges with respect to pecuniar}- penalties in public and in private

ills Fees imposed in a public bill can only be dealt with by the Lords provided they

re not paid into the exchequer ; whilst it is competent for the Lords by a private bill

J impose fees and tolls for rendered services, and to authorize the levy of rates to be

assessed and levied by local authorities for local purposes." (May's Pari. Prac. 10th ed.,

p. 517.)

" I am quite prepared to go in the direction indicated by the amendment of Mr.

Inglis Clark, which not only makes things a good deal more definite, but is a step

•eyond tlie Bill of 1891, by way of making the legislative machinery work more

noothly, and securing to the Senate that degree of individuality in mattei-s of this kind,

r which it would be a scandal to deprive them through some matter of construction."

Mr. E. Barton, Conv. Deb.,Syd., 1897, p. 474.)

j § 245. " Fines or other Pecuniary Penalties."

This represents the first of the group of minor financial matters which are excepted
:rom the prohibition against the senatorial initiation of appropriations and taxes. By
;his proviso the Senate may originate Bills containing, iTUer aiia, clauses authorizing the

668 COMMENTARIES ON THE CONSTITUTION. [Sec. 53.

imposition or appropriation of fines or other pecuniary penalties, when the object of
those fines or penalties is to secure the execution of the proposed law. Such fines and
penalties are exempted from the prohibition, and the proposal to so exempt them was
not objected to by any member of the Convention.

§ 246. <'Fees for Licences."

Bills containing provision for the demand or payment or appropriation of fees for
licences, under the proposed law, may originate in the Senate. Under this exemption
from the prohibition, a Bill dealing with such a subject as fisheries beyond territorial
waters, and imposing or appropriating fees for licences to fish in such waters, could be
introduced in the Senate. A Bill dealing with mining in Federal territories (in which
the Federal Parliament will have exclusive jurisdiction to make all laws) and authorizing
the issue of licences to mine upon payment of fees, could be introduced into the Senate.
A Bill relating to navigation, requiring the owners of ferry boats to takeout licences and
pay fees, could be brought into the Senate. In the Convention objection was taken to
this exemption from the prohibition, as tending to whittle away the originating financial
power intended for the House of Representatives. (Mr. J. H. Carruthers, Con v. Deb.,
Syd., 1897, p. 478.)

§ 247. "Fees for Services."

Bills containing provision for the demand or payment or appropriation of fees for
services rendered under a proposed law, could originate in the Senate. In practice some
difficulty may at first be experienced in determining the limits of this exemption. Some
members of the Convention, who objected to it, were inclined to magnify its importance.
It was said it was wide enough to cover Bills introduced for the purpose of regulating
the rates of postage, charges for telegrams, harbour dues, light dues, pilotage, wharfage
rates, &c., all of which were fees for services rendered.

§ 248. "The Senate may not Amend."

The second paragraph of sec. 53 takes from the Senate absolutely tlie power to-
amend tax bills and annual appropriation bills, whilst the third paragraph restricts its
power to amend other appropriation bills. The financial disabilities of the Senate may
be thus classified and reviewed seriatim : —

( 1 . ) The Senate cannot amend proposed laws imposing taxation :
(2. ) The Senate caimot amend the ordinary annual appropriation bill :
(3.) The Senate cannot amend any bill so as to increase proposed charges or
burdens on the people.
Proposed Laws Imposing Taxation. — We have had occasion, in our notes ou the
first paragraph of this section, to discuss the requirement that a proposed law imposing
taxation shall not originate in the Senate. It is manifest that a "proposed law " is »
bill, in course of passing through Parliament. The next point to consider is the
meaning of the expression, " imposing taxation." May a bill providing for the raising
of taxation contain auxiliary provision for the enforcement and collection of the tax .
Mr. Barton expressed the view that, as a tax could not be collected without subsidiary
provisions, a bill imposing taxation could embody, not merely the bare imposition of the
charge, but all the machinery clauses, referring to matter, manner, measure, and
enforcement, essential to make the law effectual and completely operative. Thisopmion
is supported by the following passage in Cooley's Principles of Constitutional Law, p.
64 : — " The power to tax includes the power to make use of all customary and usuftl
means to enforce payment. But legislation must prescribe these means and give full
directions for their employment, and it is essential to the validity of the proceeding"*
that a statute in all essential particulars shall be followed." The authorities cited in
support of this proposition are Stead v. Course, 4 Cranch, 403 ; Williams v. Peyton,
Wheat. 77 ; Parker v. Overman, 18 How. 137.

248.]

POWERS OF THE PARLIAMENT. 669

The question of construction involved is one of substance, seeing that if a law

;:i posing taxation can include all the details and incidental matters necessary to

•nstitute a complete and workable scheme to raise revenue, those details and matters

; e then placed beyond the power of the Senate to amend. It would seem that this

lactice is recognized in the United Kingdom. According to May, the Lords may not

:aend biUs which they receive from the Commons dealing with aids and supplies, so as

■ alter, whether by increase or reduction, the amount of a rate or charge^its duration,

ode of assessment, levy, collection, appropriation, or management ; or the persons who

pay, receive, manage, or control it ; or the limits within which it is leviable. (Maj^'s

Pari. Prac. 10th ed. p, 542.) It is the undoubted and sole right of the Commons to

;iiect, limit, and appoint in such bills the ends, purposes, considei-ations, conditions,

rnitations, and qualifications of such grants, which ought not to be changed or altered

' y the House of Lords. {Id. )

Laws sot Deemed to Impose Taxation. — By the first paragraph of sec. 53, a
I oposed law is not to be taken to impose taxation by reason only of its containing
ovisions for the imposition of fines or other pecuniary penalties or for the demand
: pa%-ment of fees for licences, or fees for services under the proposed laws.

Ordinakt Anxuax Appropbiatiox Bills. — The Senate is precluded from amending

• oposed laws appropriating revenue or money for the ordinary annual services of the
ivemment. Public expenditure may be divided into and considered under three
parate headings : —

(1.) The costs and expenses of maintaining the ordinary annual services ;

(2.) Fixed charges on permanent appropriations :

(3.) Extraordinary charges and appropriations.
(1.) Ordinary Annual Expenses. — The ordinary annual services include the various
iiblic departments manned and equipped to carry on the general work of the Government
■partments, such as customs and excise, posts and telegraphs, light-houses, light-ships,
id quarantine, naval and military defence, the money to pay for which is voted by
'arliament from year to year. At the beginning of each session a message from the
Lown, especially addressed to the House having the initiation of money bills, demands
le annual grant of aids and supplies for the services of the year, intimating that the
-tiniates will, in due course, be laid before the House, specifying the amount required
. ith full particulars and items of expenditure. During the session, estimates are laid

• fore the House, showing all the details of expenditure, for which provision is required.
he Crown is responsible for the preparation of these estimates, which are presented

iirougli its Ministers.

"The ordinary sessional estimates are presented in three parts or divisions,
comprising the three branches of the public services— the army, the navy, and civil
services ; and each estimate contains first a statement of the total grant thereby demanded,
ad then a statement of the detailed expenditure thereof, divided into sub-heads and
ems. These estimates should embody the total amount of the expenditure which is
(juired for each financial year ; and accordingly, by way of example, when an increase
> er the demands made by the annual estimates for the armj- and navy was requisite,
•vised or additional estimates were presented, specifying the amounts ultimately found
ecessary for those services." May's Pari. Prac. 10th ed. p. 517.)

" Besides the ordinary sessional estimates for the service of the current year, to
leet the requirements of the Executive Government, estimates for grants on account,
r supplementary grants, and for excess grants, are presented each session, and
casionally an application is made for a vote of credit to cover extraordinary naval or
lilitary charges, or for such other object of exceptional expenditure as ma^' have arisen
airing the session." {Id.)

" Owing to our financial system, and the conditions of Parliamentary business, the
jiiesentation of estimates for grants in advance upon the estimated departmental
expenditure of the year, before a complete sanction has been given to that expenditure,
is an annual necessity. These grants are known as " votes on account." {Id. 518.)

" According to established usage, demands for grants on account are restricted to
such services as have received the sanction of Parliament, though an exception is

670 COMMENTARIES ON THE CONSTITUTIOK Sec. 63.

occasionally made to this rule in favour of trifling, or non-contentious new services."'
{Id. 519. )

" Until a grant of supply has been appropriated by statute to the service and object
for which the grant is destined, the treasury, unless otherwise authorized, is not capable
of making an issue of the sum so granted from the Consolidated Fund. The introduction
of the appropriation Bill cannot, however, take place until all the grants have been
voted for the service of the current year — a process usually ranging over the period of six
months. A more prompt issue must tlierefore be made ot the money granted from time
to time for the current service of the Crown. Accordingly, from time to time bills are
passed during each session, known as the Consolidated Fund Bills, which empower the
treasury to issue out of the Consolidated Fund, for the service of the departments for
whose use the grants are voted, such sums as they may require, in anticipation of the
statutory sanction conferred by the Appropriation Act." {Id. 526.)

(2) Permanent Appropriations. — The fixed charges are those items of the national
expenditure which are provided for by permanent appropriations. In the Government
of the Commonwealth these permanent appropriations may be made, partly by the
Constitution, and partly by Acts of the Federal Parliament. The constitutional
appropriations already made are the salary of the Governor-General (sec. 3) ; allowances
to members of the Federal Parliament (sec. 48) ; and salaries of the Queen's Ministers of
State (sec. 66). There is no constitutional limit to the authority of the Federal
Parliament to make permanent appropriations. It seems, however, to be assumed that
the money necessary to pay for the ordinary annual services of the Government will be
voted from year to year. Certain charges which customarily belong to and are included
in the annual Appropriation Act could, no doubt, be removed from that Act and placed
in special Appropriation Acts. The costs and expenses of the defence department could
be made the subject of special appropriation. The policy of special appropriation, in
matters which legitimately belong to the ordinary annual services, is justly regarded
with disfavour. The Constitution of the United States (Art 1 , sec. 8, subs. 12) provides that
no appropriation of money for military piirposes shall be for a longer term than two years.
There is no such limitation in the appropriating power of the Federal Parliament, but it
is not likely that the policy of special appropriations will be largely favoured, because
it removes expenditure from the annual supervision and control of Parliament.

(3.) Extraordinary Expenses. — Extraordinary charges, which do not come within
the meaning of ordinary annual services, are appropriations of revenue or loan money for
the construction of public works and buildings, and for the application of revenue or
loan money to public purposes of a special character. As examples of these exceptional
grants May mentions the following : — Cost of an Imperial undertaking which forms no
part of the current services of the year, such as the £20,000,000 granted to facilitate the
abolition of slavery in the British Colonies ; loans to foreign countries, and to Ireland ;
or the grant for the purchase of the Suez Canal shares. Demands also for pecuniary aid
are made by a message from the Sovereign, bearing the sign-manual ; the object of the
messages being usually to obtain a grant for the maintenance of the dignity and well-
being of the Crown, or for the reward of men who have rendered distinguished service
to the Empire. (May's Pari. Prac. 10th ed. p. 524.)

From the above enumeration and discussion of the various kinds of appropriations it
will be seen that the Senate is denied the power to amend only one of the three kinds of
bills appropriating revenue or money. It is true that annual appropriation hilu
constitute by far the largest and most important of all appropriation bills, embracing, M
they do, the expenditure necessary for the maintenance of the ordinary administrative
departments of the Commonwealth. Whilst the Senate, however, could not amend aa
ordinary annual appropriation bill, it could with unquestionable constitutionality amend
a public works bill, a railway construction bill,Ja harbour improvement bill, a bill
relating to the salary of the Governor-(Jeneral, a bill relating to the salaries of ministers
of state, a bill relating to the allowances of the members of the Federal Parliament, a bill
appropriating fines or other pecuniary penalties, a bill for appropriating fees for licences
or fees for services under a proposed law. This power of amending appropriations niuHt
be read in conjunction with the limitation prescribed by paragraph iii. of the section.

. 249--250.] POWERS OF THE PARLIAMENT. 671

^ 249. " Increase Any Charge or Burden on the People."

The Senate may not amend any proposed law so as to increase anj' proposed charge

• bvirden on the people. This provision may be described as a limitation on the reserved

iwer of the Senate to amend monej' bills, other than tax bills and annual appropriation

liills. Seeing that the Senate cannot amend a bill imposing taxation, it may be

inturally asked — how can the Senate possibly amend a proposed law so as to increase

V proposed charge or burden on the people? The answer is that the Senate is only

; rbidden to amend tax bills and the annual appropriation bill ; it may amend two

kinds of expenditure bills, viz. : those for permanent and extraordinary appropriations.

It the Senate could propose an increase in the amount of money to be spent in

public work bill — say from one million sterling to two millions sterling —

that amendment would necessitate increased taxation in order to give eflfect to it, and

consequently an addition to the burdens and charges on the people. The Senate may

nend such money bills so as to reduce the total amount of expenditure or to change

;ie method, object, and destination of the expenditure, but not to increase the total

expenditure originated in the House of Representatives.

§ 250. " The Senate may . . Return to the House."

SuGGESTiox OF AMENDMENTS. — The money bills which the Senate cannot amend are

Ijills imposing taxation and bills appropriating money for ordinary annual services.

Bills of this description cannot be amended by the Senate, but it may, at any stage,

return them to the House of Representatives with a message, requesting the omission

'jr amendment of any item or provision. Under this law the Senate could suggest

amendments in the ordinary annual appropriation bills, and in tax bills, such as a bill to

impose duties of customs and excise. If the suggestions thus made were not entertained

by the House, the Senate would have to pass or reject those bills, as sent from the

House, so that the responsibility of final acceptance or rejection would remain with the

Senate as if no suggestion had been made. A fierce controversy has taken place with

reference to the power conferred on the Senate to suggest modifications in bills which it

innot amend. The argument has been thus summed up by Sir Samuel GriflSth :

Whether the mode in which the Senate should express its desire for an alteration in

I one}' Bills is by an amendment, in which they request the concurrence of the House

r Representatives, as in other cases, or by a suggestion that the desired amendment

should be made by the latter House, as of its own motion, seems to be a matter of minor

importance. A strong Senate will compel attention to its suggestions ; a weak one

\\ ould not insist on its amendments." (Notes on the Draft Federal Constitution, 1897,

p. 9.)

There does, however, seem to be a substantial constitutional difference between the

|iOwer of suggestion and the power of amendment, as regards the responsibility of the

two Houses. A short analysis ^nll make this clear. In the case of a bill which the

^enate may amend, the Senate equally with the House of Representatives is responsible

Mr the detail. It incorporates its amendments in the bill, passes the bill as amended,

!id returns it to the House of Representatives. If that House does not agree to the

niendments, the Senate can "insist on its amendments," and thus force the House of

lepresentatives to take the responsibility of accepting the amendments or of sacrificing

I he biU ; whilst the House of Representatives cannot force the Senate to take a direct

vote on the bill in its original form.

On the other hand, in the case of a bill which the Senate may not amend, the House
of Representatives alone is responsible for the form of the measure ; the Senate cannot
strike out or alter a word of it, but can only suggest that the House of Representatives
should do so. If that House declines to make the suggested amendment, the Senate is
face to face with the responsibility of either passing the bill as it stands or rejecting it
as it stands. It cannot shelve that responsibility by insisting on its suggestion, because

672 COMMENTARIES ON THE CONSTITUTION. [Sec. 63.

there is nothing on which to insist. A House which can make an amendment can insist
on the amendment which it has made ; but a House which can only " request " the other
House to make amendments cannot insist upon anything. If its request is not complied
with, it can reject the bill, or shelve it ; but it must take the full responsibility of its
action. This provision therefore is intended to declare the constitutional principles
(1) that the House of Representatives is solely responsible for the form of the money
bills to which the section relates ; (2) that the Senate may request alterations in anv
such bill ; (3) that if such request is not complied with, the Senate must take the full
responsibility of accepting or rejecting the bill as it stands.

Origin of the Provision. — The origin of the plan permitting the Senate to
suggest to the House of Representatives by message the addition or amendment of any
items or provisions in proposed laws which it may not amend, is found in the practice of
the South Australian Parliament. In 1857 a dispute arose between the Legislative
Council and the House of Assembly of that province as to the true meaning and inter-
pretation of the Constitution Act of 1856. The Assembly passed a bill to repeal a tax on
the tonnage of shipping and to substitute a wharfage rate. The Council amended the
bill. This was resisted by the Assembly, which declared it to be a breach of privilege.
A protracted controversy took place between the two Houses, resulting, however, in a
compromise. On 23rd August, 1857, the Council passed the following resolutions : —

"(3.) That this Coimcil further declares its opinion that all Bills, the object of
which is to raise money, whether by way of loan or otherwise, or., to warrant the
■expenditure of any portion of the same, shall be held to be Money Bills."

"(4.) That it shall be competent for this Council to suggest any alteration in any
such Bill (except that portion of the Appropriation Bill that provides for the ordinary
annual expenses of the Government), and in case of such suggestions not being agreed to
by the House of Assembly, such Bills may be returned by the House of Assembly to this
Council for reconsideration, in which case the Bill shall either be assented to or rejected
by this Council as originally passed by the House of Assembly."

"(5.) That this Council, whilst claiming the full right to deal with the monetary
affairs of the province, does not consider it desirable to enforce its right to deal with
the details of the ordinary annual expenses of the Government. That on the Appropria-
tion Bill in the usual form being submitted to this Council, this Council shall, if any
clause therein appear objectionable, demand a conference with the House of Assembly
to state, the objections of this Council and receive information."

On the 17th November, 1857, the House of Assembly passed the following resolu-
tion : —

" That, in order to facilitate the conduct of public business, this House of Assembly,
whilst asserting its sole right to direct, limit, and appoint, in all Money Bills, the ends,
purposes, considerations, conditions, limitations, and qualifications of the tax or
appropriation by such Bill imposed, altered, repealed, or directed, free from all change
or alteration on the part of any other House, will nevertheless for the present adopt the
third, fourth, and fifth resolutions, as agreed to by the Legislative Council on the "iSfd
August, 1857, and forwarded to this House by message on that day."

This modun vivendi or compact is fully explained, and its constitutional aspects are
learnedly discussed by Sir Richard C. Baker, in an able paper presented by him to the
Federal Convention in Adelaide on 8th February, 1898. (See Votes and Proceedings
Federal Convention, Melbourne, 250.) The same practice has been adopted by tlie two
Houses of the West Australian Parliament. As to the manner in which the coiniwct
has worked, iu the colonies whose Parliaments adopted it, the following extracts from
speeches delivered in the Federal Convention of 1891 will bear testimony : —

" I would say that, considering the compromise which was arrived at was the com-
promise which was arrived at in South Australia over twenty years ago, between the
Legislative Council of that colony and the House of Assembly, and that that compromise
has worked so exceedingly well for that period, we, in making the compromise contained
in this bill, have not departed from any powers we possess ; that is, we have not gone
outside the colonies to adopt a mode by which we may get over the difficulties of co-
ordinate powers between the two Houses. We have, however, adopted a system which
has been in operation in one of the colonies for many j'ears, with very happy results.
Therefore, we have just as much right to say that by adopting the South Australian

^250-251.] POWERS OF THE PARLIAMENT. 673

sompromise which has worked so well for so many years we have adopted a compromise
trhich will work well for the Commonwealth of the future, as we have to say that if we
[lad adoptetl the American system, which I contend exists under different conditions
md apart from responsible government, it also would have worked well." (Mr. Thos.
Playford, Conv. Deb., Syd., 1891, p 922.)

" Sir, something of this kind has been and is in operation in at least two colonies in
he group. The hon. member, Mr. M'Millan, seemed to think that the arrangement by
irhich an amendment in a monej" bill could be communicated by message to the lower
lOuse, though nominally in force in South Australia, was not operative. All I can say
8, that in the first assembling of our two houses in Western Australia, when this very
(uestion came up, we carefully studied matters in South Australia, and we were
Mjnvinced. from the frequent, the effective, and the conciliatory application of the
ystem that it was a course of procedure that deserved consideration. The result was
hat in the very first question that arose between our two houses we adopted the South
Australian mode of procedure, and in consequence an amendment of a highly desirable
haracter was made in legislation relating to finance. Therefore, I look upon the
►ractice as the established practice of Western Australia as well as of South Australia.
lus power, so far from being degrading, is really a power which is lodged in another
ranch of Parliament. I refer to the Governor representing the Queen. Under most of
■or Constitutions, he can communicate — I do not say as to money bills, but as to other
sgislation — by message slux amendment he thinks it desirable to make in a Bill after it

passed both houses. And the same procedure would be adopted as to dealings
etween the Senate and the House of Representatives in regard to financial legislation."
Mr. J. W. Hackett. Id. p. 741.)

§ 251." '<The Senate shall have Equal Power."

Subject to the exceptions of (1) its inability to originate Bills appropriating revenue
money, or imposing taxation, (2) its inability to amend Bills imposing taxation, and

'<) its inability to amend an annual appropriation Bill, and subject also to the limitation
it in amending other appropriations, it cannot increase the charges or burdens on the
»ple, it is declared by the Constitution that the Senate shall have equal powers with

le House of Representatives in respect to all proposed laws. The Senate has co-ordinate

>wer with the House of Representatives to pass all Bills or to reject all Bills. Its right
veto is as unqualified as its right of assent. But though the veto power of the Senate,
far as this section is concerned, maj' be absolute, it is subject to be reviewed by the

•ocedure provided for in the deadlock clause. (Sec. 57. )

Appropriation Bills.

54. The proposed law which appropriates revenue or
oneys for the ordinary annual services-^- of the Government
all deal only with such appropriation.

Hlstokical Note. — The provision in the Commonwealth Bill of 1891 was : "The

enditure for services other than the ortlinary annual services of the Government shall
be authorized by the same law as that which appropriates the supplies for such
inary annual services, but shall Ije authorized by a separate law or laws."

At the Adelaide session, in 1897, the same words were adopte<l. In Committee, Mr.

IJer moved an amendment to provide that the ordinary- Appropriation Bill should

include expenditure " for any services which the Senate may, by an address to the

emor-General, declare to be inimical to the interests of any State." It was pointed

that this would give the Senate a power to amend Appropriation Bills, and the

ndment was negatived by 21 votes to 11. Mr. Glynn moved an amendment to

event general legislation being included in an Appropriation Bill ; but this was

gatived. (Conv. Deb., Adel., pp. 603-8.)

At the Sydney session, a new sub-clause suggested by both Houses of the Tasmanian
;,rliament was considered, that "The law which appropriates the supplies for the

674 COMMENTARIES ON THE CONSTITUTION. [Seo. 66.

ordinarj' annual services of the Government shall deal only with the appropriation of
such supplies." Mr. Wise pointed out the importance of the provision, and it was agreed
to. (Conv. Deb., Syd., 1897, pp. 5.39-40.)

At the Melbourne session amendments were made before the first report, and the
original provision was struck out as being included in the new provision. After the
second report, Mr. Isaacs moved the insertion of " proposed" before " law," and this
was carried by 23 votes to 15. (Conv. Deb., Melb. , pp. 2075-6.) Various amendments
were then suggested to make it clear that a law should not be invalid for breach of this
requirement ; but on the understanding that the Drafting Committee would consider
the question, these were withdrawn. (Id. pp. 2076-85.)

§ 252. "The Ordinary Annual Services."

Tacking. — The Senate is forbidden, by sec. 53, to amend a proposed law appro-
priating revenue or money for the ordinary annual services of the Government. This
section is intended to prohibit any attempt on the part of the House of Representatives
to embody in the annual appropriation bill provisions irrelevant and foreign thereto— a
course which would prejudice the right of the Senate to amend or reject such provisions.
In former years the House of Commons abused its right to grant supplies by "tacking"
to Supply Bills provisions alien to supply, in order to bring such provisions within the
rule of exemption from amendment by the House of Lords. This was an invasion of the
undoubted privileges of the Lords. On 9th Dec, 1702, the Lords niade a determined
stand against this practice by passing Standing Order No. 59, as follows : —

" That the annexing any clause or clauses to a bill of aid or siipply, the matter of
which is foreign to, and different from, the matter of the said bills of aid or supply, is
unparliamentary, and tends to the destruction of the Constitution of the Government."

Sec. 54 merely expresses in a statutory form what has been the recognized consti-.
tutional rule for nearly two hundred years.

Proposed Law. — It will be noticed that the phrase " proposed laws " is used in
sec. 54, in the same sense as in sec. 53. Should a matter not properly appertaining to
the ordinary annual services of the Government appear in an annual Appropriation Act,,
it will not be a ground for attack on its constitutionality. The objection must be taken
in the Senate before that chamber gives its assent to the proposed law. After the
proposed law has been passed by both Houses, and has been assented to by the Crown,
it becomes an Act, and it cannot then be impeached in the Federal Courts for any breach
of sec. 54 which may happen to appear on its face.

Tax Bills.

55. Laws imposing taxation'^^ shall deal only with the
imposition of taxation^^^ and any provision therein dealing
with any other matter shall be of no efFect^"^^

Laws imposing taxation, except laws imposing duties of
customs or of excise, shall deal with one subject of taxation
only ; but laws imposing duties of customs shall deal with
duties of customs only, and laws imposing duties of excise
shall deal with duties of excise only.

HiSTORiCAi. Note.— In the Commonwealth Bill of 1891, clause 55 provided
(sub-clauses 2 and 3) that " Laws imposing taxation shall deal with the imposition of
taxation only," and that " Laws imposing taxation, except laws imposing duties of
customs on imports, shall deal with one subject of taxation only."

2.53.1

POWERS OF THE PARLIAMENT. 675

At the Adelaide session, in 1897, these provisions were adopted in the first draft.

Ill Committee, Mr. Reid moved to insert "proposed" before "laws," in order to

'event the clause from affecting the validity of a law when passed. A discussion

lowed on the expediency of some such amendment, it being argued on the one side

;i it the matter Mas mereh' one between the Houses, and on the other that it involved an

important principle of State-rights which should have the protection of the High Court.

'" lally the amendment was withdrawn. Sub-clause (3) was then amended to read: —

i.aws imposing taxation, except laws imposing duties of customs on imports or of

. X. ise, shall deal with one subject of taxation only ; but laws imposing duties of customs

shall deal with duties of customs only, and laws imposing duties of excise shall deal with

duties of excise only. (Con v. Deb., Adel., pp. 578-603.)

At the Melbourne session, drafting amendments were made before the first report ;
I after the second report Mr. Isaacs again moved the insertion of " proposed" before
■• s ; but after a long debate this was negatived b}' 27 votes to 17. Mr. Barton moved
insert " and collection " after imposition, but this also was negatived by 26 votes to
l<i. An amendment by Mr. Deakin to enable customs and excise duties to be imposed
in the same bill was negatived bj* 20 votes to 19. (Con v. Deb., Melb., pp. 1999-2075.)
. Reid moved an amendment to the effect that the prohibition of the section should
invalidate in a law anj' part thereof which did not infringe the prohibition ; and that
ii a tax bill contained more than one subject of taxation, the tax first in order of enact-
ment should be vaUd. This was negatived by 27 votes to 15. After the third report,
Mr. Reid moved to add, to the first paragraph, " and any provisions therein which do
not deal with the imposition of taxation shall be of no effect." This was agreed to.
iMafting amendments were made after the fourth report. (Conv. Deb., Melb., pp.
-'4-50-1.)

§ 253. '' Laws Imposing Taxation."

As section 54 prohibits the " tacking " of extraneous matters to appropriation bills,

his section prohibits the tacking of extraneous matters to " laws imposing taxation."

L- difference between " proposed laws " and " laws " (see Note, § 240, <iup7-a) becomes

ir, when we compare the two sections. If the words of this section had been

noposed laws imposing taxation shall deal only with the imposition of taxation,"

upliance with the direction would have been required merely as a matter of order

■ ween the two Houses ; and violation of the direction would not have invalidated the

^ . when finally pas.sed. In this section, however, the word " proposed " is deliljerateh'

itted ; the mandate is that " laws" imposing taxation shall deal only with taxation.

t had stopped there, absolute nuUitj' would have been the penalty of the whole of an

t pui-portiiig to impose taxation and dealing with any other matter. This was the

m of the section as settled by the Adelaide Convention. The remainder of the para-

;[)h, " and any pro\ns!on therein dealing with any other matter shall be of no effect,"

■; added, under circumstances hereafter to be mentioned, at the final session of the

nvention in Melbourne.

The principle of this limitatioli in favour of the Senate forms part of one of the

mipromises of the Con-stitution, in consideration of which the House of Representatives

i> endowed mth the exclusive power to originate Money BiUs, and the Senate was

!>rived of the power to amend bills imposing taxation and appropriating revenue or

■ney for the ordinarj- annual services of the Government. The compromise itself was

: strongly objected to in the Convention. What M-as objected to was the form of the

itation and the penalty of the absolute nullity of every law which violated the

iiitation. If the word "bills" or the phrase "proposed laws" had been used in place

t "law," the section would have been accepted without demur, as a part of the

>mpromise. The whole of the debates on the section, which began in Adelaide and

ided in Melbourne, rallied around the question whether the section should read " laws

aposing taxation," or " proposed laws imposing taxation." In the Adelaide Convention

676 COMMENTARIES ON THE CONSTITUTION. [Sec. 55.

an effort was made by Mr. Isaacs, Mr. Kingston, and Mr. Reid, to omit the woni
"laws "and insert the word "bills," or alternatively to insert the word "proposed"
before " laws." Such an alteration would, as we have already seen, leave to the Senate
the responsibility of enforcing the provision in its favour, by laying aside bills which
violated the Constitutional prohibition ; it would not have permitted Acts of the Federal
legislature to be reviewed by the Federal Courts, and declared void, on mere questions
of form and order. It was pointed out that as the section was intended for the benefit
of the Senate, that chamber should be allowed, if it thought fit, to waive the privilege
without endangering the validity of the law ; it would be disastrous if, after a bill
imposing taxation had been passed by both Houses and received the Royal assent, and
after, perhaps, it had been brought into operation and revenue collected thereunder, it
could be assailed in a court of law. Moreover, attention was drawn to the invidious
distinction between this section, protecting the rights of the Senate, and the preceding
section protecting the rights of the House of Representatives. It would be unfair that
non-compliance with this section should be fatal to the validity of a law, if non-
compliance with the preceding section were not. On the other hand the distinction was
justified on the ground that the origination and amendment of money bills involved
mere matters of procedure between the two Houses — matters in which the two Houses
only were concerned ; and if any violation thereof took place it would not appear on the
face of the law, and consequently could not be considered by the Courts, unless proved
by extrinsic evidence ; whereas if a tax Act contained provisions irrelevant to taxation
such irrelevant matters would appear on the face of the Act, and would be examinable
by the Courts without such evidence.

In order to secure Federal taxation Acts against the possibility of attack in the
Federal Courts, it was suggested that a distinct sub-section should be inserted providing
that such Acts, when passed, should not be liable to be called in question in respect to
any breach of the provisions of the section. Another suggestion was that any accidental
faihire to comply with the provisions of the section should not invalidate a law. But
neither of these suggestions was accepted.

In repl}' to the argument that the Senate could protect itself, and should be allowed
to waive its privileges, without endangering the law, it was said : —

" A law which may be introduced, in violation of one of these sub-sections, may be
believed to be a violation by the Senate, and thrown out on that ground, and be sent
back. It may be sent up again bj' the House of Representatives, and so by that way
you have a question which, instead of being settled, becomes a matter of contest
between the two Houses. Another matter of difference between the two Houses we
know. It is where one House happens to take an unpopular view of a question -a view
which for the time being is not the view of the majority of the people. We know it is
easy to bring the pressure of the majority of public opinion on one House for the purpose
of obtaining a violation of the law. This is not intended to be a protection to the
House or the Representatives of the House, but to the States represented in the House;
that no matters of tactics between the Houses, or no playing off of public opinion^ by
one House against another, shall ever take away the protection embedded in the Con-
stitution for the States. I have heard of the argument of the inconvenience of laws
being upset on account of some invalidity being discovered — some trifling invalidity,
perhaps. I say you must submit to that inconvenience if you wish to enter a Federal
Constitution. The very principle of the Federal Constitution is this : tliat the
Constitution is above both Houses of Parliament. That is the difference between it and
our Houses of Parliament now. The Federal Constitution must be above both HousM
of Parliament, and they must conform to it, because it is in the (/barter under which
union takes place, and the guarantee of rights under which union takes place ; and,
unless you have some authority for them to interpret that, what guarantee have you for
preserving their rights at all. It is verj' necessary to insert this provision in the
Constitution, because if you do not do tliat then these questions are questions of pro-
cedure between the two Houses, in which undue pressure may be brought to bear at any
time on one House or other for the purpose of vetoing a law and doing injustice to tli'"
States represented in that House in the different ways in which the States are repre-
sented. (Mr. R. E. O'Connor, Conv. Deb., Adel., pp. 591-2.)

" Parliament is not supreme, and the verj' essence of the Federation is that >t
should not be so. Parliament, as far as constitutional questions are concerned, is under

_>o'}-'254.] POWERS OF THE PARLIAMENT. 677

the law, and it must obey the law. If we make an exception in regard to Money Bills
wc had better make an exception in the case of all other Bills which may arise under
the provisions of clause 51, and thus sweep away the High Court. I thought that we
were all agreed that the reason for the establishment of the High Court was a salutary
one, and that it would determine constitutional law and practice. We must all
remember that at one portion of the historj' of England a question of liberty was raised
l)y a humble individual named John Hampden, who put forward a point on the subject
ot taxation. We do not know but that we may have John Hampdens in Australia
r lising questions of liberty ; it would be well to leave the High Court of Australia to
(leal with such matters as that." (Mr. J. H. Symon, Id., p. 594.)

At the Melbourne sittings of the Convention, the contest was renewed. An
amendment was submitted by Mr. Isaacs, to insert the word "proposed"' before
'• laws.'"

Once more the question was exhaustively debated. At last a middle course was

^eed to. The amendment to insert the word " proposed " was negatived, but the

'\ ords were inserted providing that in the event of extraneous provisions being inserted

in a taxing act, the extraneous provisions only — and not the whole law — should be

invalid.

§ 254. "The Imposition of Taxation."

During the debate on the financial sections 53 and 55, the meaning of the expression
"the imposition of taxation " was discussed, and the question raised whether a law
imposing taxation and also providing for its collection would be ultra vires of the
Constitution. Doubts were suggested whether the restriction that tax bills should deal
only with the imposition of taxation might not be read so as to exclude from tax bills
the ordinary machinery clauses, providing for the assessment and valuation of property,
t he subject of taxation, and for the enforcement and collection of the tax.

Referring to this point, Sir Samuel Griffith wrote : "A more serious question is

wliether provisions regulating the collection of taxes should be allowed to form part of

* !ie same laws by which the amount of the tax is fixed. This point should be clearly

tied and expressed." (Xotes on the Draft Federal Constitution, 1897, p. 9.) Mr.

acs understood this note to mean that "imposing taxation" does not include collection

I'l machinery. (Conv. Deb., Melb., p. 2049.) Mr. Barton was inclined to think that,

ording to the well-known principle that the grant of a power includes all the

eessary means for its eflfective exercise, the exclusive power given to the House of

presentatives to originate bills "imposing taxation" would carry with it the

, isidiary power to provide machiner}- in the same Bill for the collection of the taxes.

It was pointed out that according to the practice observed in some constitutionally

governed countries, taxing bills, fixing the nature, amount, and incidence of proposed

taxes, were kept separate and distinct from machinery bills, dealing with such details

as collection, assessment, and valuation. " Would not the power of collection be

embraced in the power to impose taxation ? " asked Sir Edward Braddon. (Conv. Deb.,

Melb., p. 2056.) Mr. Barton said that power to collect would be, ordinarily, included

the power to impose taxation, but in a section such as this, so strong in its intention

> restrict laws imposing taxation to the mere imposition of taxation, it might be as

jtvell to remove doubt by adding after " imposition " the words "and collection." It

vas pointed out, however, that as the Senate was prohibited from amending proposed

>vs imposing taxation, the addition of the words "and collection " would have the

:ect of depriving the Senate of the power to amend matters in a tax Bill, relating to

- method of collection.

" I confess that when I first proposed the amendment I did not see the extent to
w^hich it went. But, ha\Tng appreciated the extent to which it goes, I still feel bound
;o adhere to it. The difficulty that would arise unless 3'ou allowetl the House of Repre-
sentatives to include in these Bills the ordinary powers of a-ssessment and collection
.vould be, that, while you might have a certain tax imposed in the Bill fixing the amount
)f the tax, the machinery Bill might be so subject to amendment by the Senate that the
Hrhole financial policy of the Government which introduced it, with a majority of th-j

078 COMMENTARIES ON THE CONSTITUTION. [Sec. 65.

House of Representatives behind them, might be entirely subverted. That is a difficulty
which, I think, none of lis wish to create. Therefore, I am prepared to take the
responsibility of adhering to the amendment. Holding the position I have always held,
that the Senate should be a real body and not a mockery of State interests— while it
should be a Second Chamber holding definite powers and rights as expressing the will
of the people within the States which it represents -I have also held that we should only
carry responsible Government into effect by making it real and effective, and a power of
amending a machinery Bill to the extent of making a tax not worth collecting would be
equal to tlie power of amending a Bill imposing taxation." (Mr. E. Barton, Con v. Deb.,
Melb., p. 2060.)

"All 1 am endeavouring to do is to attribute a meaning to words in this Constitution,
which I believed in Adelaide — and I explained my belief as I have read — that they did
convey, which I am inclined to believe now they do convey, without a special explanation ;
but as to which I am in serious doubt, because of the ver^' strong express nature of the
words ' shall deal with the imposition of taxation only.' It is in order to remove that
doubt, and for that purpose only, that I wish these words to be inserted, and I really do
believe that tlie insertion of the words will carry out the real spirit of the understanding
of 1891." (/rf. p. 2067.)

Mr. Barton's amendment to add the vt^ords "and collection " was rejected by 26
votes to 16. But see Note, § 248, supra.

§ 255. " Shall be of No Effect."

The next important point discussed was whether a law violating the rule forbidding
the combination of taxation with any other matter, or the rule forbidding a tax Act to
contain more than one subject of taxation, should be void in toto, or should be void only
to the extent of the irrevelancy, or to the extent of the additional subjects. Mr. G. H.
Reid moved that the prohibition should not invalidate anj' part of the law which did
not infringe the provisions of the Constitution, and that if any law imposing taxation
contained more than one subject of taxation, the tax first in order of enactment shoul
be taken to be properly passed. (Conv. Deb., Melb., p. 2089.) This amendment wi
negatived by 27 to 15 votes. The feeling, however, prevailed in the Convention thi
some provision should be made in the Constitution, to the effect that only the parts
the Act in which the forbidden matter existed should be invalid. At a later stage
Mr. Reid moved the insertion of the words " and any provision therein dealing with
any other matter shall be of no effect." This amendment was accepted without a division.
(Conv. Deb., Melb., 2415.)

§ 256. " One Subject of Taxation Only.".

By the first paragraph of the section, laws imposing taxation must deal only with
the imposition of taxation. If the section contained no other limitation regulating and
restricting the exercising of the taxing power there would be nothing to prevent the
House of Representatives from sending to the Senate a bill containing a number of
separate and independent taxes. The section, however, goes on to enact that laws
imposing taxation shall, with the exception of those relating to customs and excise, deal
with one subject of taxation only. It is necessary to explain the object of thu
limitation. By the second paragraph of sec. 53, the Senate is deprived of the power to
amend tax bills, but it may constitutionally reject them. In order to maintain its right
to veto, in detail, each specific tax to which it objects, without thereby involving the
rejection of other taxes of which it approves, the Constitution prohibits the conibinatum
of taxation proposals ; it requires each proposed tax to be submitted by the House of
Representatives to the Senate, in a separate bill. This procedure being followed, tlie
Senate can exercise its discretion with respect to each tax, without being coerced to
pass a tax to which it objects, in order to carry a tax which it desires. In this respect
the Senate will have greater control over taxation than the House of Lords enjoys.

The Papers Duties Precedent may be here referred to in illustration of the manner
in which sec. 55 will operate in strengthening the Senate. In 1860, the Commons

-.6.]

POWERS OF THE PARLIAMENT. 679

■rmined to balance the j'ear's ways and means by an increase of the property tax and
•np duties, and the i-epeal of the duties on paper. The increased taxation had

ady received the assent of Parliament, when the Lortls rejected the Paper Duties
iieal Bill, and thus overruled the financial arrangements voted by the Commons.
it House was natui-ally sensitive to this encroachment upon its pri\-ileges ; but the

Is had exercised a legal right, and their vote was irrevocable during that session,
e Commons, therefore, to maintain their privileges, recorded upon their journal, 6th
>■, resolutions affirming that the right of granting aids and supplies to the Crown is
: lie Commons alone ; that the power of the Lords to reject bills relating to taxation

- justly regardetl by this House with peculiar jealousy, as afiecting the right of the
Mimons to grant the Supplies, and to provide the ways and means for the service of the
u- ; and that to gnartl, for the future, against an undue exercise of that power by the

lis, and to secure to the Commons their rightful control over taxation and supply,

- House has in its own hands the power so to impose and remit taxes, and to frame
!s of supply, that the right of the Commons as to the matter, manner, measure, and

e may be maintained inviolate.'" In accordance with these resolutions, dming the
vt session, the financial scheme of the year wafe presented to the Lords for acceptance

ejection as a whole. The Commons again resolved that the paper duties should be
■ ?aled ; but, instead of seeking the concurrence of the Lords to a separate bill for that
. {x«e, they included in one bill the repeal of those duties with the property tax, the

and sugar duties, and other ways and means for the service of the ]iear ; and this
i the Lords were constrained to acc-ept. The budget of each year has since that

\sion been comprised in a general and composite Act — a proceeding supported by

•edent. In 1787, Mr. Pitt's entire budget was comprised in a single bill ; and during

ay subsequent years great varieties of taxes were imposed and continued in the same
:s. (Mays Pari. Prac. 10th ed. pp. 550-1.)
From this precedent it appears that the Commons have the right to send to the

Js a single scheme of taxation embodying the repeal of old taxes and the imposition
■lew taxes ; the functions of the Lords being, in such a case, limited to a simple assent
the whole scheme or a simple negative of the whole scheme. Such a composite or

leral tax bill could not be submitted by the House of Representatives to the Senate ;

vould be unconstitutional, the maxim being " one tax one bill," except in the case of

3 dealing with customs and excise.
We have now to consider what will lie the consequence if Parliament should,

ether by accident or design, pass a law imposing taxation, yet dealing with more than

- subject of taxation — a law, say, imposing an income tax and a stamp duty. A proposal
-t the tax standing first in order in the enactment should be valid, whilst the other,
' >thers, next in order should Ije null and void, was rejected by the Convention. No

vision is made in the Constitution, therefore, for segregating the taxes and providing
the validitj- of one and the nullity of the others. Where the Constitution intends
It one portion of an Act only shall be of no efiFect and the rest operative it is so
pressed. The only conclusion is that an Act embodj-ing a pluiality of taxes would
absolutely and completely lUlra nren.

Recommendation of money votes.

56. A vote, resolution, or proposed law*^' for the appro-
)riation of revenue or moneys shall not be passed unless the
urpose of the appropriation has in the same session been
ecommended by message of the Governor-General to the
louse in which the proposal originated"^.

HiSTORiCAX. Note. — The provision in the Commonwealth Bill of 1891 was:

680 COMMENTARIES ON THE CONSTITUTION. [Sec. 56.

" It shall not be lawful for the House of Representatives to pass any vote, resolution,
or law for the appropriation of any part of the public revenue, or of the produce of any
tax or impost, to any purpose that has not been first recommended to that House by
message of the Governor-General in the session in which the vote, resolution, or law is
proposed."

This provision was taken from the Constitution Acts of the several colonies ; see,
for instance, Constitution of New South Wales, sec. 54.

The draft Constitution as settled at the Adelaide session restricted the exclusive
originating power of the House of Representatives to Bills whose " main object" was to
appropriate money or impose taxation. It was then seen that bills for tlie appropriation
of revenue or moneys, but whose " main object " was not such appropriation, might l)e
introduced into the Senate, and would require a message ; and consequently the clause
as drafted at Adelaide provided that it should not be lawful for " the Senate or the
House of Representatives " to pass a vote, &c., for appropriation without a message.
It was pointed out that this would involve a message to both Houses in the case of every
appropriation Bill ; and the clause was therefore altered to read as follows : —

" It shall not be lawful for the Senate or the House of Representatives to pass any
vote, resolution, or proposed law for the appropriation of any part of the public revenue
or moneys to any purpose which has not been first recommended to the House in which
the proposal for appropriation originated by message of the Governor-General in the
session in whicli the vote, resolution, or law is proposed." (Conv. Deb., AdeL, pp. 616,
1200 )

That was the second stage in the evolution of the message section. At the Sydney
session the clause relating to the origination of Money Bills was altered by the omission
of the " main object " limitation, and the substitution of the provision that a Bill should
not be deemed an Appropriation or Tax Bill merely because it provided for fines or
fees. This took away from the Senate the power to initiate that large class of
Appropriation Bills contemplated by the Adelaide clause ; but the Chairman, Sir
Richard Baker, thouglit that the decision to allow the Senate to initiate Bills imposing
and appropriating fines and fees would still necessitate messages to the Senate ; and,
therefore, suggestions made by several of the Houses of Legislature, to require a message
to the House of Representatives only, were not put from the chair. (Conv, Deb., SyA,
1897, pp. 540-1.)

At the Melbourne session, the words "for the Senate or the House of Representatives"
were omitted by the Drafting Committee before the first report, and the clause then
read as follows : - i

"It shall not be lawful to pass any vote, resolution, or proposed law for the
appropriation of any part of the public revenue or moneys to anj^ purpose which has not
been first recommended to the House in which the proposal for appropriation originated
by message of the Governor-General in the session in which the vote, resolution, or law
is proposed."

This was the shape in which the clause was debated in Melbourne, after the second
report. The first point discussed was the meaning of the words " it shall not be lawful _
They apparently amounted to a prohibition, any breach of which would render the IftW^
even if passed, invalid, thereby enabling the courts to enquire into the question whetha
an Appropriation Bill had been recommended by message or not. (See Todd, Pari. GovJ
in Col. 2nd ed. p. 6.S7. ) Mr. Reid pointed out the undesirableness of this ; and
prevent any difficulty arising from the circumstance of a preliminary vote being take
on an Appropriation Bill before the necessary message was brought down to the Hou
he also suggested the omission of the word " first," so that the clause should rea
" which has not been recommended to the House." With this alteration it would only
be necessary that the message should reach the House before the Bill was passed by the
House. The Drafting Committee subsequently gave effect to these suggestions by
omitting the words "it shall not be lawful," and the word " first," and re-casting the
clause into its present form. Mr. Isaacs moved to substitute " House of Representatives
for " House in which the proposal originated," on the ground that the Senate, un'i<'i

,7.] POWERS OF THE PARLIAMENT. 681

. 53, had no power to originate a " proposed law for the appropriation of revenue or
.ej's" within the meaning of the Constitution. This was negatived by 26 votes to
. (Conv. Deb., Melb., pp. 2096-2104, 2451 )

§ 257. '* Vote, Resolution, or Proposed Law."

Xo vote, resolution, or proposed law for the appropriation of revenue or moneys can
jiassed, unless the purpose of the appropriation has been recommended by
CrowTi. Public revenue can be raised without the preliminary recommendation
"he Crown, but once raised and once placed in the custody of the Crown, it cannot be
• nded except on the recommendation of the Crown, and for a purpose so recom-
ided. The constitutional principle, which vests in the Crown the sole responsibility
r national expenditure, is a most important one, and it greatly enhances the power
1 influence of the Executive.

"The modem change in the pecuniary position of the Crown has not affected the
essity of such an application to Parliament. The supplies are still granted to the
wn. To the Crown still belongs the management of the revenues of the State ; and
it all payments for the public service are still made. The Crown, therefore, makes
\vn to the Commons the pecuniary requirements of the Executive Government ; and
Commons, upon this information, both grant such supplies towards these requirements
"liey think fit, and provide suitable means for raising the necessary amount. The
.Nidation, therefore, of parliamentary taxation is its necessity for the public service as
lared by the Crown through its political advisers. It is accordingly a fundamental

- of the House of Commons that the House will not entertain any petition or any
lee for a grant of money, or which involves the expenditure of any money, imless it

ommunicated by the Crown. We are so accustomed to the general practice, and

deviations from it have been so inconsiderable, that its importance is scarcely

treciated. Those, however, who have had the experience of the results which

I'jwed from its absence, of the scramble among the members of the Legislature to

ain a share of the public money for their respective constituencies, of the ' log-

ling," and of the predominance of local interests to the entire neglect of the public

irest, have not hesitated to declare that 'good government is not attainable while

unrestricted powers of voting public money and of managing the local expenditure

"he community are lodged in the hands of an Assembly.' This salutary rule has too

en been evaded. The House of Commons sometimes addresses the Crown, requesting

t a sum of money be issued for some particular purpose, and promising to make good

amount. This practice has been generally confined to small sums and to services,

amount of which cannot be immediately ascertained. It is sometimes also adoptecl

the end of the session, when the Committee of Supply has closed, and when the svmi

lUt of sufficient magnitude to induce the re-opening of the Committee. It is rarely

l, and never to any considerable extent, to overcome the reluctance of Ministers to

:ie proposed outlay. Even in this extent the best parliamentary authorities regard

- practice with great disfavour." (Hearn's Gov, of Eng. 2ud ed. p. ,S76-7.)

•' In colonies under responsible government, the Governor ought not to assvmie
{jonsibility for the financial arrangements regarding expenditure which has been
hoiized by Parliament, so long as they do not contravene existing law : such matters
letail are distinctly within the province of ministers responsible to Parliament,
reover, a constitutional Governor ' takes no part in the settlement of the estimates,
ich are prepared by the responsible ministers at the head of the several departments
the public serv-ice.' His signature to a message to enable the Assembly constitu-
nallv' to take into their consideration any proposed vote of public money is, therefore,
ler ordinary circumstances, ' a formal act,' which does not necessarily express or
ply a personal opinion with regard to the policy of the proceeding which, upon the
ice of his ministers, he has thus initiated and authorized. But the omission of the
vernor's recommendation to a measure appropriating public revenue is contrarv to

\v, and invalidates all proceedings thereon." (Todd, Pari. Gov. in Col. 2nd ed. p. 637.)

•'In 1868, the then Governor of Victoria, Sir Henrv" Manners-Sutton, was instructed

the Colonial Secretary, in a despatch dated January 1, 1868, to refuse his sanction to

icing on the estimates a grant in favour of the wife of ex-Governor Darling. But this
iection was based on the groimd of Imperial policy, which forbade any gift to be
eived by a colonial (Jovemor, or any of his family, from the colony over which he had

^esided, either during his term of office or upon his retirement." (Id. p. 638.)

" Governor Bowen, of Victoria, on September 19,1877, telegraphed Her Majesty's

jicretary of State for the Colonies to know whether he was at libertv to consent to his

<582 COMMENTARIES ON THE CONSTITUTION. [Sec. 56.

ministers placing on the estimates a vote for the payment of members of the local
legislature, the principle of which had been twice alfirmed by both Houses, notwith-
standing that, subsequently, separate bills to authorize the payment of members had
been rejected by the Legislative Council. In reply, the Colonial Secretar\- stated that,
as the matter was one of purely local concern, and involved no question calling for the
intervention of the Imperial Government, responsibility must rest entirely with
ministers, and he saw no reason why the (xovernor should hesitate to follow their
advice." {Id.)

§ 258. " To the House in which the Proposal Originated."

An important discussion was raised on a proposal by Mr. Isaacs to add the words,
" of Representatives," after " House," in the above section, so as to make it clear that
Crown messages recommending appropriations of revenue or moneys could only be sent
to the House of Representatives. As sec. 53 then stood it apparently contemplated
that bills appropriating revenue or moneys or imposing taxation should originate solely
in the House of Representatives, and that bills imposing or appropriating fines or other
pecuniary penalties, or fees for licences or services, should not be deemed to appropriate
revenue or money, and therefore that bills of such a kind could be introduced into
the Senate without a message. It was stated by Mr. Barton that the Drafting Committee
entertained a doubt whether a proposed law containing provisions to impose or appro-
priate fines or penalties, or for the demand or payment or appropriation of fees for
licences or for services, was not an appropriation as far as the appropriatory part was
concerned, which would require a message. It was for that reason that the words, as
they stood, had been left in. The Committee had since arrived at the conclusion that
the provision that such bills should "not be taken to appropriate revenue or moneys,"
would be construed to mean that, by the law of the Constitution, such things are not to
be deemed an appropriation and would not require messages.

Dr. Cockburn insisted on the necessity of a message from the Crown to justify the
imposition and appropriation of fines, penalties, foi'feitures, and fees, by the Senate.
Mr. Kingston considered that the Senate should not be permitted to originate impositions
and appropriations, of even the limited kind referred to, without a message from the
Crown. That was a safeguard which should be demanded as a part of thesysteoKrf"
responsible government.

" My point is this : That whilst you may well let matters of that sort originate in
the Senate, it is not desirable, either as regards the House of Representatives or the
Senate, in connection with these minor matters, to throw away that control over th'
purse which is vested in the Execixtive ; and which is evidenced by the giving or with
holding of a Governor's message. The leader of the Convention will see that, ac >
to the terms in which clause 56 has been framed, it is evidently intended to aj'
both Houses, and I hope it will be so continued, and that the Senate siuill not be .
any more than the House of Representatives, the power of originating measures ■
sort for the expenditure of public funds, unless it is recommended by the Execui
(Mr. C. C. Kingston, Con v. Deb., Melb., p. 2100.)

Mr Barton was not in doubt as to the advisability of requiring these ini[)osition»
and appropriations to be recommended by message : —

"Even if I am right in thinking that a Bill of the character indicated in tin ' " '
part of clause 54 does not require a message, still I do not find anything :
Constitution to do away with the necessity of a message, even in the Senate, for a n
resolution, if such vote or resolution is taken in the Senate. But now letusconn' '
practical side of the question. Under this Constitution, with the Ministrj- prari ;
responsible to the House of Representatives, as they will be if this Constitution is
carried, is it likely that a Ministry responsible to that House, no matter wliich House
he sits in, will ever bring down a message to the Senate ? It seems to me to l>o n\m
unlikely that he will, and therefore there is not any serious practical dithculty." (^"'
E. Barton, Conv. Deb., Melb., 2102.)

The point made by Mr. Isaacs, that fines, penalties, and fees, were declared by tn<^
Constitution itself not to come within the meaning of the terms " imposing taxation,
and " appropriating revenue and money," was overborne by the considerations advancca
by Dr. Cockburn and Mr. Kingston, and Mr. Isaacs' amendment was rejected.

•r^ ] POWERS OF THE PARLlA]iIENT. 683

ictical side of the question is this, that if a message be required as the condition

cedent to the origination of such minor financial matters in the Senate, it will

prive the power, contemplated bj' the proviso to sec. 53, of much of its value. It

il make the exercise, by the Senate, of that modicum of financial initiation, absolutely

■ pendent on the Ministry of the day. It is doubtful, however, notwithstanding the

ejection of the amendment, whether a message is necessary as a preliminary to the intro-

luction into the Senate of the class of Bills refeiTed to.

Disagreement between the Houses.

57. If the House of Representatives^ passes any

proposed law, and the Senate rejects'^ or fails'to pass it, or

i>asses it with amendments to which the House of Repre-

atatives will not aorree, and if after an interval of three

iionths"-®^ the House of Representatives, in the same or the

lext session, again passes-^^ the proposed law with or with-

'ut any amendments which have been made, suggested, or

^reed to by the Senate, and the Senate rejects or fails to

iss it, or passes it with amendments to which the House of

representatives will not agree, the Governor-General may

lissolve-'^ the Senate and the House of Representatives simul-

aneously. But such dissolution shall not take place^ within

ix months before the date of the expiry of the House of

Representatives by effluxion of time.

If after such dissolution the House of Representatives
^ain passes the proposed law, with or w^ithout any amend-
iients which have been made, suggested, or agreed to by the
Senate, and the Senate rejects or fails to pass it, or passes it
dth amendments to which the House of Representatives
rill not agree, the Governor-General may convene a joint
ittinor*^ of the members of the Senate and of the House of
Representatives.

The members present at the joint sitting may deliberate
tid shall vote together upon the proposed law as last
roposed by the House of Representatives, and upon amend-
lents, if any, which have been made therein by one House
nd not agreed to by the other, and any such amendments
hich are affirmed by an absolute majority of the total
limber of the members* of the Senate and House of Repre-
jntatives shall be taken to have been carried, and if the

684 COMMENTARIES ON THE CONSTITUTION. [Sec. 57.

proposed law, with the amendments, if any, so carried is
affirmed by an absolute majority of the total number of the
members of the Senate and House of Representatives, it shall
be taken to have been duly passed by both Houses of the
Parliament, and shall be presented to the Governor-General
for the Queen's assent.

Historical Note. — The first deadlock proposal was made in the Sydney Convention
of 1891, when Mr. Wrixon proposed a joint sitting in case suggestions of the Senate as
to Money Bills were rejected by the House of Representatives. This was negativecL
(Conv. Deb., Syd., 1^91, pp. 706, 759-62; supra, p. 139.)

At the Adelaide session in 1897, deadlock proposals were moved by Mr. Wise and
Mr. Isaacs, but were negatived on division. (Conv. Deb., Adel., pp. 1150-73; supra,
pp. 180-2.)

During the statutory adjournment, the Legislative Assemblies of New South Wales,
Victoria, and South Australia, suggested the insertion of different deadlock provisions
(supra, pp. 182-7), and at the Sydney session the question was debated at length, with
the result that two schemes were inserted in the Bill : — (1) A consecutive dissolution of
both Houses, proposed by Mr. Symon ; (2) a simultaneous dis.solution of both Houses,
followed if necessary by a joint sitting at which a three-fifths majority should decide— a
proposal built up on propositions made by Mr. Wise, Sir Geo. Turner, and Mr.
Carruthers. (Conv. Deb., Syd., 1897, pp. 541-778, 807-980; supra, pp. 189-193 )

At the Melbourne session, after the second report, the question was again discussed,
with the result that the scheme for a consecutive dissolution was omitted ; but otherwise
— except in minor details — the Sydney decision was adhered to. (Conv. Deb., Melb ,
pp. 2104-2249, 2451-2; supra, pp. 202-4.) Drafting amendments were made before the
first report and after the fourth report.

The tliree-fifths majority was strongly objected to in New South Wales, and both
Houses of the Parliament of that colony recommended the substitution of a simple'
majority. At the Premiers' Conference at Melbourne in 1899, an absolute majorit}' was
substituted for a three-fifths majority. (Supra, pp. 214-8.)

§ 259. "Disagreement Between the Houses."

This section provides several distinct and successive stages in the procedure bj*
which a disagreement may be determined. The first stage is the rejection or failure by
the Senate to pass a bill proposed by the House of Representatives ; then succeeds an
interval of three months for consideration and possible compromise ; next, if there is no
amicable settlement, the House again passes the bill, with or without amendments ; if
the Senate rejects, or fails to pass it a second time, the Governor-General may dissolve
both Houses simultaneously ; if, after the double dissolution, the House of Representative-
again passes the proposed law, and the Senate rejects it for the third time, the Governoi
General may convene a joint sitting of the whole of the members of the Senate and ^''
the House of Representatives. At this joint sitting the members present may delil>er!it«
and vote together upon the proposed law, and upon amendments previously propose i
thereto.

The debates in the Convention, on the question what provision should be made in the
Constitution for the settlement of deadlocks, were prolonged and exhaustive, and second
to none in interest. A sketch of those debates M-ill be found in the Historical
Introduction, and here we must content ourselves with presenting a brief analysis oi
the section, as it now stands, representing as it does the matured thought of the
Convention, subsequently modified in one matter of detail by the Conference of Premiers
and approved by the People.

260-284.] POWERS OF THE PARLIAMENT. 685

§ 260. ** If the House of Representatives Passes."

A preliminary feature in the scheme for the settlement of deadlocks is that it does
• extend to Bills originating in the Senate ; it is only applicable to Bills Avhich have
u initiated in and passed by the House of Representatives. There is no limit to or
ilification of the class of measures which may become the subjects of the deadlock
cetlure. It covers every proposed law which may have been passed by the national
mber.

§ 261. " And the Senate Rejects."

The next step in the history of a possible deadlock is that the Senate rejects or fails
pass the proposed law, or passes it with amendments to which the House of
presentatives will not agree. If it is not a Bill imposing taxation or appropriating
enue or money for the ordinary annual ser\ices of the Government, the Senate may
ourse amend it. If it is such a BiU, the Senate may not amend, but may return it
:he House of Representatives, with a message suggesting the omission or amendment
my items or proxnsions therein. If the Senate i-ejects the Bill absolutely, or if its
endments or suggestions are not accepted by the House, and the Senate refuses to
-s the Bill without the acceptance of its amendments or the adoption of its suggestions
the House, the Bill is lost.

§ 262. " An Interval of Three Months."

After the failure of the proposed law to receive the concurrence of both Houses, an
terval of three months must be allowed to elapse before any further action can be
<en imder this section. That interval is required to give time for consideration and

:eiliation, and to permit of the development and manifestation of public opinion
1 oughout the Commonwealth. That interval may be composed of time wholly within
: same session of Parliament as that in which the bill was proposed and lost, or it may

composed of time partly in that session and partly in a recess, or in another session.
•? interval may be longer than three mouths, but it cannot extend beyond the next

-ion of the Fetleral Parliament.

263. " If the House of Representatives Again Passes."

After the interval of three months the House of Representatives may again pass a
'posed law, with or without any amendments which have been made by the Senate, or
endments suggested by the Senate, or amendments made in the House and agreed to
the Senate. It must not be a new bill, but the original bill modified only by amend-
iits made, suggested or agreed to by the .**enate. If the bill is one of ordinary

.islation, not relating to taxation or the appi-opriation of revenue or money for the
iinary annual services of the Government, the Senate could, at this stage, as at the

~t stage, amend it. If it is a tax bill or an annual Appropriation Bill the Senate
ild by message suggest amendments. The House of Representatives could agree to
■ amendments, or it could amend as suggested by the Senate, in which case the bill
•uld be saved ; it could refuse to agree to the amendments made, or it could refuse to

aend as suggested ; in which case the bill would again be lost.

§ 264. " The Governor-General may Dissolve."

Upon the concurrence of all these conditions precedent the Constitution enables the
overnor-CTeneral to dissolve the Senate and the House of Representatives simultaneously,
his power would be exercised by him, as the Queen's representative, in the same
anner as other prerogatives of the Cro>*Ti ; viz., according to the ad^^ce of Ministers
ho have the confidence of Parliament.

686 COMMENTARIES ON THE CONSTITUTION. [Sec. 57.

§ 265. "Such Dissolution shall not Take Place.'

There is one restriction on the power of the Crown to grant a double dissolution. It
may not take place within six months before the date of the expiry of the House of
Representatives by effluxion of time. The policy of this restriction is that the House
of Representatives may not be permitted to court a deadlock, and to force a dissolution
of the Senate, when the House of Representatives is on the point of expiry. If there is
to be a dissolution of both Houses, the House of Representatives must submit to sacrifices
as well as the Senate. Under this restriction its members will have to lose at least six
months of their prospective term of membership. This loss, however, would be small
compared with the term of membership which the Senators would lose. It is thus
assumed that under this procedure the members of both Houses will have every oppor-
tunity to agree and every inducement to abstain from unreasonable disagreement.

On the dissolution of the Senate the Governor of each State will cause writs to be
issued for the election of new senators for the State. The writs must be issued within
ten days from the proclamation of the dissolution. They will appoint the da.y of election
and the officers to conduct the election (sec. 12). The Constitution does not limit the
time within which, after the issue of the writs, the election of senators must be held.
Power, however, is given to the Parliament of each State to make laws for determining
the time and places of election of senators for the State (sec. 9).

After the first meeting of the Senate, following a dissolution thereof, the Senate is
required bj' sec. 13 to proceed to make provision for the retirement of its members by
rotation, similar to that made by it after its first election.

The writs for the election of members of the House of Representatives will be issued
by the Governor-General in Council, within ten days from the proclamation of the
dissolution (sec. .32). The time appointed for the return of the writs will be specified in
the writs. Parliament must be summoned to meet not later than thirty days after the
day appointed for the return of writs (sec. 5).

§ 266. "A Joint Sitting."

The joint sitting is not a new contrivance in Parliamentarj' government. It ii
founded on the practice of conflicting legislative cliambers at times appointing representa-
tives to meet in conference authorized to discuss questions in dispute, and to suggest
possible modes of settlement. In that practice, recognized both in Great Britain and
her colonies, as well as in the United States, may be found the germ of which tlie joint
sitting elaborated in this Constitution is the development.

After the re-assembling of Parliament the House of Representatives, if disposed to
carry on the campaign in favour of the proposed law, is entitled to again pass it with or
without amendments which have been made, suggested or agreed to by the Senate, m
the last session of the dissolved Parliament. It is again sent to the Senate, which is
again, and for the third time, invited to pass it, or to pass it with amendments agreeable
to the House of Representatives. If the Senate rejects the bill or fails to pass it witli
amendments to which the House of Representatives will agree, the (Jovernor-Genoral,
acting according to the advice of his responsible ministers, may convene a joint sitting
of the members of the Senate and of the House of Representatives. The conduct of the
business and proceedings of the joint sitting will be regulated by joint standing rule*
and orders made and agreed to by the Houses under sec. 50.

The question upon which the members present at the joint sitting " may delilier*'*
and shall vote together " are :— (1) the bill as last proposed by the House of Representa-
tives ; and (2) any amendments which have been ma<le by one House and not agreed to
by the other. Any such amendments which are affirmed by an absolute majority of the
total number of the members of both Houses will be taken to be carried ; anil the Bii
itself, with any amendments so carried, must be voted upon, and if affirmed i>y a simiwr
•'absolute majority" of memljers it will be presented for the Royal assent just as if it
had been passed by both Houses separately.

266] POWERS OF THE PARLIAMENT. 687

Money Bnj^. — These dead-lock provisions apply to all bills — as well bills whicL

the Senate may not amend as bills which it may amend. But it should be noticed that

the section is careful not to give the Senate any power, by means of the joint sitting, to

ure any amendment which the Senate could not have made in the first instance. The

ly questions, besides the Bill itself, which can be voted on at the joint sitting, are

iiendments " made by one House '' and not agreed toby the other. In the case of a

U which the Senate may amend, amendments which it has made may be voted on at

e joint sitting ; but in the case of bills which the Senate ma3- not amend, mere

.rgestions made by the Senate cannot be dealt with at the joint sitting. This section,

•refore, does not give the Senate any indirect power of moulding the form of those

ancial measures for which the House of Representatives is solely responsible.

The Absolcte Majority. — Under the clause as adopted by the Convention, the

: oposed law and any amendments had to be carried, not by a simple majority, as in the

ise of business done in the Houses sitting separately, but by three-fifths of the members

• present and voting." The main reason assigned in the Convention for this special

majority was that, as the House of Representatives was twice as strong in numbers as

the Senate, it would not be fair to the Senate to invite it to a joint conference at which

: would be easily swamped and outvoted b\- overwhelming numbers. At the Pi-emiers'

■nference, 1899, Mr. Reid asked for a simple majoritj' — instead of three-fifths — of the

embers present and voting ; and the matter was compromised by plx)^"idiug for a

ajority, not of those present and voting, but of all the members of both Houses — or

what is concisely called an "absolute majority." In this waj' the artificiality of an

xtraordinary majority was avoided, and at the same time it was ensured that a majority

the Senate could never be defeated at a joint sitting except by a vote which would

lount to a majority of a full joint sitting.

The effect of the requirement of an " absolute majority " to carry a proposal is that

'..e opponents of a proposal need not muster in force to defeat it ; whether they ai-e

; esent or absent the proposal cannot be earned unless its supporters have an absolute

majority, and will be carried if its supporters have that majority. On the other hand,

the supporters of the proposal must be present to the retiuired number, or they cannot

succeed. In view, however, of the fact that a joint sitting, when it occurs, will be the

final stage in a long political struggle, the difference between a simple and an absolute

ijority loses much of its importance. If the supporters of a proposal do not number

;i absolute majority, they will be unlikely to win in any case : and if they do number

an absolute majority, it is very unlikely that any member of that majority will absent

himself and thereby betray his party at the moment when >-ictor3- is within their grasp.

The Deadlock Machisbry. — Some of the members of the Convention, representing
the more populous colonies, feared that through the principle of equal representation the
less populous States would be able to exercise undue influence in the Senate, so as to
wart the will of the popular majority of the whole Commonwealth. At any rate this
iS the argument as interpreted by Sir Samuel GriflBth. (Notes on the Draft Common-
Iwealth Bill, 1899, p. 18.) Thus the whole of this complex and elaborate machinery for
che settlements of deadlocks is founded on the assumption that two Representative
Chambers, directly elected by the same class of people in all the States, will not work in
harmony, but may at times come into deadly conflict.

Should this assumption be well founded, and should the deadlock clause be brought
into action with undue frequency, it will not be any evidence against the principle of
sqoal representation, but rather proof of a temporary divergence of interests, and
ibsence of that unity and identity of political growth which in the coarse of time should
ireld together the federated community. Such divergences will, no doubt, ine\ntably
lisappear, to be succeeded by a permanent tendency to integration, as the resultant of
he national elements which pervade the Constitution.

The provision made by this Constitution for the dissolution of the Senate is the
atest and greatest experiment in Fetleral Government. Xo other second Chamber in

688 COMMENTARIES ON THE CONSTITUTION. [Sec. 58.

any federal system is liable tp be dissolved on any question of general legislation. By
the Swiss Constitution (Art. 120), if the two Chambers are unable to agree on the
question whether there shall be a total revision of the Constitution, the question is then
referred to the people ; and if a majority of the electors voting support a revision, both
Chambers are dissolved, and the work of revision devolves upon the new federal legisla-
ture. (See Deploigne, Referendum in Switzerland, 1898, p. 129.) But in respect of
ordinary legislation there is no such provision. Immunity from dissolution en «io*»e
has been hitherto one of the recognized privileges, and certainly the strongest bulwark,
of Upper Houses generally. That feeling of constitutional indifference to such disturbing
events as general elections has been one of the charms and attractions of the Upper-
House-Membei'ship. The precedent, however, has been established once and for all
time, and sooner or later it will invade the sacred precincts of most of the second
Chambers in the world.

It would be premature as well as unwise to indulge in speculations as to whether
its liability to dissolution will tend to weaken the effective power of the Australian
Senate. If the Senate is well led, a dissolution may result in its being supported and
strengthened by the States. Although the Senate represents the States, as corporate
units, it is based on the elective principle, as much as the House of Representatives. It
will feel what Goldwin Smith describes as the " sap of popular election in its veins." In
a disagreement with the House, it may assert its views with ability, dignity, and
determination, it will fully realize its responsibility to the States, and will insist that its
responsibility to its corporate constituents is as great as that of the other chamber to the
people as individual units. If an uncompromising attitude on the part of both Houses
leads to a double dissolution, the Senate may be reconstituted with added, and not
diminished, authority. On the other hand, it is equally possible that the Senate, badly
led, may be badly beaten in the appeal to the people and to the States. This much is
certain, that the people as final arbiters will be the gainers of power by the liability of
both Houses to dissolution.

Royal assent to Bills. ■'^^^m'

58. When a proposed law passed by both Houses of tn^^
ParHament is presented to the Governor-General for the
Queen's assent^^", he shall declare, according to his discretion,
but subject to this Constitution, that he assents in the
Queen's name, or that he withholds assent, or that he reserves
the law for the Queen's pleasure.

The Governor-General may return to the House in which
it originated any proposed law so presented to him, and
may transmit therewith any amendments^*^*^ which he may
recommend, and the Houses may deal with the recom
mendation, I

Historical Note. — The clause as introduced in the Sydney Convention of 1891 w«
in substance the same as this. The first paragraph follows the provisions of the Act for .
the Government of New South Wales and Van Diemen's Land, 1842 (5 and 6 Vic. c- 76,
sec. .31), with the important exception that it makes no mention of the royal instructions.
The second paragraph is taken from sec. 36 of the Constitution of Victoria, and sec 28 t
of the Constitution of South Australia, which are in substantially the same tenn«. I
(Conv. Deb., Syd., 1891, p. 763.)

JtiT.]

POWERS OF THE PARLIAMENT. 689

At the Adelaide session the clause was adopted in substantially the same form. At

Sj-dney session, a suggestion by the Legislative Assembly of Victoria, to insert "and

Her Majesty's instructions" after "Constitution," was negatived. (Conv. Deb.,

1., 1897. pp. 778-9.) At the Melbourne session, drafting amendments were made

:>re the first report and after the fourth report.

y^ 267. " Presented to the Governor-General for the
Queen's Assent/'

When a bill passed by both Houses of the Federal Parliament is presented to the
\ emor-General for the Queen's assent he may do one of three things :

(1.) He may assent to the Bill in the Queen's name ; and thereupon it becomes
law, and remains law unless inithin one year from the date of the assent
it is expressly disallowed by the Queen.
(2.) He may withhold assent, that is absolutely veto the Bill, and thereupon it

is lost for the time being.
(3.) He may reserve the Bill for the signification of the Queen's pleasure, and
thereupon it becomes subject to the procedure defined by sec. 60.
The assent of the Queen to proposed laws is Her Majesty's assent as a separate,
iependent, and co-equal branch of the Federal Parliament. The form in which this
tion is drawn is materially different from the wording of corresponding sections in
ceding Constitutional Acts, and this difference of form indicates the difference in the
-tructure of the Federal Parliament compared with that of other colonial legislatures,
and also the larger grant of power with which it is invested.

By Act 5 and 6 Vic. c. 76 (.30th July, 1842) it was pro^•ided that the Governor of
- w South Wales, with the advice and consent of the Legislative Council, should have
kuthority to make laws for the peace, welfare, and good government of the colony,
irovided that such laws should not be repugnant to the law of England or interfere in
ny way with the sale or appropriation of the Crown lands within the colony (sec. 29).
n accordance with the old constitutional principle, that section recognized the Crown as
he sole legislature, and the Legislative Council merely as an advisory body. Consistently
ath the same principle, sec. 30 gave the Ciovemor authority to transmit to the Council
rafts of such laws as appeared to him desirable to pass. The Governor was also
ntitled to return to the Council bills which it had passed, recommending that amend-
ments should be made in such bills. By sec. 31 it was enacted —

" That every Bill which has been passed by the said Council and also every law
reposed by the Governor which shall have been pas.sed by the said Council whether
ith or without amendments shall be presented for Her Majesty's assent to the Ciovemor
f the said Colony and that the Governor shall declare according to his discretion but
abject nevertheless to the pro\'isions contained in this Act and to such instructions as
lay from time to time be s^ven in that behalf by Her Majesty Her Heirs or Successors
liat he assents to such Bill in Her Majesty's name oi- that he withholds Her Majesty's
ssemt or that he reserves such Bill for the signification of Her Majesty's pleasure
iere<Hi."

I Upon the presentation to the Governor of a Bill for Her Majestj-'s assent, he was
|irected to declare " according to his discretion " that he assented to such Bill in Her
ajesty's name, or that he withheld Her Majesty's assent or that he reserved such Bill
r the signification of Her Majesty's pleasure thereon, but the Governor's discretion was
mited in two waj-s. It could only be exercised : —

(1.) Subject to the provisions contained in the Act, and

(2. ) Subject to such instructions as might from time to time be given to him
in that behalf by Her Majesty, her heirs and successors.
The first limitation referring to the provisions of the Act evidently alludes to the
>nstitutionadity of the proposed law, the Governor being required to satisfy himself that
was within the legislative authority conferred on him with the advice and c-onsent of

690 COMMENTARIES ON THE CONSTITUTION. [Sec. 58.

the Council. The second limitation required the Governor to exercise his discretion
according to royal instructions, which would from time to time be given to him. Here
then we come upon the statutory origin of an aiithority for rojal instructions to
Australian Governors. By sec. 40 of the same Act it is declared that Her Majesty may,
with the advice of her Privy Council, or under Her Majesty's signet and sign manual, or
through one of her principal Secretaries of State, from time to time convey to the
Governor of New South Wales such instructions as to Her Majesty sliall seem meet for
his guidance in the exercise of his powers of assenting to, dissenting from, or reser\nng
Bills passed by the Council, and that it shall be his duty to act in obedience to such
instructions. Next came the Act 7 and 8 Vic. c. 74, sec. 7 (6th Aug., 1844), which
recited that the object of providing for the reservation of Bills was to insure that such
Bills should not be assented to by the Governor " without due consideration," a^d
provided that it should not be necessary for the Governor to reserve any such Bill, from
which, in the exercise of his discretion as limited in the Act of 1842, he should declare
that he withholds Her Majesty's assent, or to which he should have previously received
instructions on the part of Her Majesty to assent.

The Constitutional Act for the better government of the Australian colonies, 13 and
14 Vic. c. 59 {5th Aug., 1850), which created Victoria as a separate colony, re-enacted S
and 6 Vic. c. 76, ss. 31 and 40, and 7 and 8 Vic. c.'74, s. 7, and made them applicable
to the newly-created Australian Legislatures. The Constitution Statute of New South
Wales, 18 and 19 Vic. c. 54, s. 3 (16th July, 1855), and the Constitution Statute of
Victoria, 18 and 19 Vic. c.55 (16th July, 1855), continued the operation of the old laws,
directing the Governor to assent to or reserve Bills in conformity with instructions.
The old law was made applicable to the new system of representative and responsible
government then introduced.

From this review of constitutional legislation it will be seen that the practice of
limiting by instructions the Governor's discretion in giving or withholding the royal
assent to Bills began in 5 and 6 Vic. c. 76, s. 31, statutory authority for those instructions
being first found in sec. 40 of that Act ; that the intention of sections 31 and 40 of the
said Act is explained and extended by sec. 7 of the Act 7 and 8 Vic. c. 74 ; that the
provisions of those Acts were confirmed by sec. 33 of the Act 13 and 14 Vic. c. 59 ; tliat
previous legislation relating to the subject was confirmed by the Constitution Statutes
of New South Wales and Victoria (16th July, 1855) ; and that those Statutes still remain
in force, so far as they are applicable to the Governments of the States. Under this
series of Imperial Acts, rules and instructions were formulated by the Inijierial
authorities, regulating the exercise of the discretion of Australian Governors, in giving
or withholding the royal assent to Bills passed by the Australian legislatures.

Among the instructions referred to, the following may be mentioned : That in the
passing of all laws, each different matter be provided for by a different law, without
intermixing in one and the same Act such things as have no proper relation to each
other ; that no clause or clauses be inserted in or annexed to any Act which shall w
foreign to what the title of such Act imports, and that no perpetual clause be part of
any temporary law. Then followed a list of the classes of Bills to which the Governor
was not permitted to assent, but which he was required to reserve for the signification of
the Queen's pleasure. These instructions remained in force in most of the Australut"
colonies until 1892 (see p. 398, supra), when they were superseded by a new draft "t
instructions, in which the Governor was allowed greater freedom in the exercise of In-
discretion in assenting to or withholding assent from Bills ; he was not directe<i i'
attend to the petty details above recited, but he was still directed to reserve Bills of tin
following classes : —

(a) Any Bill for the divorce of persons joined together in holy matrimony.

(6) Any Bill whereby any grant of land or money, or other donation or gratuity
may l)e made to himself.

$4 267-268] POWERS OF THE PARLIAMENT. 691

(d) Any Bill imposing diflferential duties (other than as allowed by the

AuftrcUian Colonies Duties Act, 1873).

(e) Any Bill the provisions of which shall appear inconsistent with obligations

imposed upon Us by treatj'.
{J) Any Bill interfering with the discipline or control of Our forces in the

colony bj- land or sea.
(y) Any Bill of an extraordinary- nature and importance, wherebj' Our preroga-
tive or the rights and property of Our subjects not residing in the colony,
or the trade and shipping of the United Kingdom and its dependencies,
may be prejudiced.
(A) Any Bill containing provisions to which Our assent has been once refused,
or which has been disallowed by Us.
Since the appointment of the Marquis of Lome, on 6th October, 1878, the instructions
associated with the office of Governor-General of Canada have been amended by the
mission of the clause which formerly prescribed the classes of bills to be reserved by
he Governor-General for Imperial consideration. Pursuant to this change in the tenor
f the Royal Instructions to Governors of Canada — first introduced in 1878, by the
omission of any direction for the reservation of bills — an Act passed by the Canadian
Parliament in 1879, to effect the judicial separation of certain parties from the bonds of
matrimony, was assented to by the Governor-General (•42 Vic. 79), which Act previously
must neefls have been reserved for the signification of the royal pleasure thereon.
Todd"s ParL Gov. in Col., 2nd ed. p. 163.)

The instructions associated with the office of Governor-General of the Commonwealth
will probably be framed on the lines of the Canadian model. Indeed, according to a
strict interpretation of sec. 58 of the Constitution of the Commonwealth it would not be
legal for Her Majesty, through the Secretary of State for the Colonies, to fetter the
discretion of the Governor-General by instructions such as those which, with unquestion-
able legality, were given under the authority of the Act 5 and 6 Vic. c. 76, ss. 31 and 40.
The C^vernor-General is authorized to assent in the Queens name to Bills, to withhold
the Royal assent to BiUs, or to reserA-e Bills for the signification of the Queen's pleasure,
"according to his disci-etion," and subject only to the Constitution; not subject to
instructions, as under the Act of 1842. In determining the exercise of his discretion,
the (Jovemor-General will be entitled to receive from the law officers of the Common-
wealth a report in reference to each Bill to be submitted for his sanction, specifying
whether there is any legal objection to his assenting to it, or whether his duty and
obligations, as Representative of the Crown, necessitate that he should withhold his
assent or reser\e the Bill for the consideration of the Imperial Government. (Todd's
ParL Gov. in Col. , 2nd ed. p. ] 66. \ As a general rule, a Governor would be justified in
accepting and acting upon statements of such functionaries in local matters. But if his
own indiWdual judgment does not coincide with their interpretation of the law, his
responsibility to the Crown may require him to delay acting on the advice of his Ministers.
But whatever steps he may think fit to take upon such a grave emergency, and from
whatever materials his opinion may be formed, he is individually responsible for his
conduct, and cannot shelter himself behind advice obtained from outside his Ministry.
(Id. p. 167.)

.^ 268. '' The Governor-General may . . Transmit . .

Amendments."

The origin of the constitutional legislation enabling the Governor of a colony to
recommend to its legislature amendments in proposed laws, may be traced back to 5 and
6 Vic. c. 76, s. 30 (p. 689 supra). It was reproduced in the Constitation Act of Victoria,
1855, sec. 36, as follows : —

" It shall be lawful for the Governor to transmit by message to the Council or
Assembly tor their consideration any amendment which he shall desire to be made in amy

G92 COMMENTARIES ON THE CONSTITUTION. [Sec. 59.

Bill presented to him for Her Majesty's assent ; and all such amendments shall be taken
into consideration in such convenient manner as shall by the rules and orders aforesaid
be in that behalf provided."

This power of recommending amendments, vested in the Governor, has been found
in parliamentary practice a very useful one, and even under our system of responsible
government it has been used with advantage. It is of special value, towards the end of
a session, when Bills have been passed through all their stages in both Houses of
Parliament, and when it has been found that inaccuracies or discrepancies have crept
into some of them. In such circumstances Ministers formulate the required amendments,
and upon their advice the Governor transmits a message to the House in which the Bill
or Bills requiring rectification originated. Thereupon amendments recommended are
duly considered and dealt with, and if adopted, are transmitted to the other Chamber
for its concurrence.

Disallowance by the Queen.

59. The Queen may disallow^^^ any law within one year
from the Governor-General's assent, and such disallowance
on being made known by the Governor-General by speech
or message to each of the Houses of the Parliament, or by
Proclamation, shall annul the law from the day when the
disallowance is so made known.

Historical Note. — The first draft of this clause in the Commonwealth Bill of 1891
was taken from the Act for the Government of New South Wales and Van Dienien's
Land, 1842 (5 and 6 Vic. c. 76, sec. .32). It was to the same effect, except that the
period for disallowance was within two years from the receipt of the Bill by the Queen.
In Committee, Mr. Cockburn moved to substitute "one year" for "two years," but
this was negatived. He then moved to add : — " Provided that such disallowance shall
be exercised on such subjects only as affect Imperial interests and are specified in
schedule B." This also was negatived. (Conv. Deb., Syd., 1891, pp. 7C3-5.)

At the Adelaide session, 1897, the clause was introduced and adopted in the same
form, except that the period for disallowance was one year from the receipt of the
Bill. At the Melbourne session, before the first report, this period was altered to " one
year from the Governor-General's assent," and further drafting amendments were niaxle.
A verbal amendment Avas made after the fourth report.

§ 269. "The Queen May Disallow."

In the abandonment of power to regulate, by instructions, the Governor-General s
discretion in assenting to, withholding assent from, or reserving, Bills presented to hint
for the Royal Assent, the Crown has not relinquished one iota of its rightful autliont\ .
nor has the paramount sovereignty of the Imperial Parliament been in the snmll<'>'
degree abated or impaired. The Constitution assumes that the Queen's Representative
will have the absolute confidence of the Queen's Imperial Government, and that he will
be able to exercise his discretion without the assistance or dominating guidance ot
standing rules and directions formulated by the Secretary of State for the Colonici".
The grant of legislative power is determined by the Constitution, and the Inii)enftl
Parliament would not have granted the power if it were not satisfied that its exerciw
was placed in safe hands. To appoint the Governor-General as the Queen's Representative,
in one section of the Constitution, and in another section to withhold the free an<
trusted exercise of his discretion, within the limits assigned by the Constitution, wou <
have been a manifestation of distrust in the Queen's Representative, unworthy of t e

269] POWERS OF THE PARLIAMENT. 693

dignity of his high office. At the same time the grant of a constitutional discretion to
tlie iTOvernor-General is quite compatible with the existence and maintenance of that
supreme supervision over all the affairs of the Empire, which is exercised by the Queen
through her Imperial Ministers. Even after the Governor-Greneral has assented to a
! iw, the ultimate power of disallowance is, by the Constitution, reserved to the Queen,
I bject onl}' to the condition that the right of disallowance must be exercised within
le year from the date of the Governor-General's assent. Consequently if a Bill
-sented to by the Governor-General is afterwards found by the Imperial Government to
contain matter which justifies the interposition of the Royal veto, so as to suspend its
operation, it may be disallowed, pursuant to the power reserved in the Crown. This
method of conserving Imperial interests is more satisfactory, and more in harmony with
the larger measure of self-government granted by the Constitution, than the old sj'stem
ijf instructing the Governor not to assent to certain classes of Bills, mauj" of which were
([uite within the competence of the colonial legislatures and related to matters of purely
local interests.

There can be no doubt that the reserved power of disallowance will be wisely and
sparingly exercised, in accordance with the rule long established, that Her Majesty's
( Government refrains from interfering with an\' colonial legislation which is consistent
\\ ith colonial constitutional law, except in cases invohnng Imperial and international
relations. From a return recently presented to the House of Lords, showing the number
'>t cases in which laws, assented to bj' colonial Governors, have been afterwards vetoed
li\" the Cro>vn, it appears that it has been only necessary to use this extraordinary
prerogative on a few occasions. (See Note, § 270 iit/ra.)

The assent of the Queen's Representative to a proposed law, passed by the two
Houses of the Federal Parliament, and the subsequent non-exercise of the power of
'lisallowance, would not make it a good and valid law, if it were passed on a matter over
w hich the Federal Parliament had no authority or control under the Constitution of the
Commonwealth ; such a law would be a nullity according to the maxim, " de/ectiis
pote^tatis nxdlitas nuilifalnm.'' (Per Taschereau, J., in Lenoir v. Richie, 3 S.C.R. [Can.]
624.) The same law which prescribes limits to the legislative power imposes on the
Federal Courts the duty of seeing that that power is not exceeded. (Per Duval, C.J., in
J^'Union St. Jacques de Montreal v. Belisle, 1 Cartwright, 84.) Where a statute is
adjudged to be unconstitutional it is as if it had never Ijeen. (Cooley's Const. Lim. 6th
cd. p. 222. ) But the Courts will not presume that the Fedei-al Parliament has exceeded
its power, unless upon grounds of a really serious character, and they will not listen to
an objection to the constitutionalitj' of any Federal Act, unless it is raised and pleaded
in due form by some one having an interest in questioning its validit3'. (.Stuart, J., in
Belanger v. Caron, 5 Quebec L.R. 2.3.)

Signification of Queen's pleasure on Bills reserved.

60. A proposed law reserved for the Queen's pleasure
hall not have any force unless and until within two years
from the dtiy on which it was presented to the Governor-
General for the Queen's assent the Governor-General makes
known, by speech or message to each of the Houses of the
Parliament, or by Proclamation, that it has received the
Queen's assent.

Historical Note.— Clause .59, Chap. I., of the Commonwealth Bill of 1891 was to
the same effect, and follows the usual pro^^sions in colonial Constitutions. See for

694

COMMENTARIES ON THE CONSTITUTION. [Sec. 60.

instance the Act for the Government of New South Wales and Van Dieraen's Land, 1842
(5 and 6 Vic. c. 76, sec. 33). The Bill of 1891 also contained a further provision : — " An
entry of every such speech, message, or proclamation shall be made in the journal of
each House, and a duplicate thereof duly attested shall be delivered to the proper officer,
to be kept among the records of the Parliament."

At the Adelaide session, 1897, the draft of 1891 was substantially followed. In
Committee, Mr. Reid moved to substitute " one year" for " two years," on the ground
that two years was too long to keep the Commonwealth in suspense. It was pointed out,
however, that to limit the time might limit the opportunities for securing the assent ;
and the amendment was negatived by 17 to 16. (Conv. Deb., Adel., pp. 8.33-4.) At a
later stage Dr. Cockbum suggested the omission of the clause, but it was carried. (/6_
pp. 1200-1.)

At the Sydnej' session, a suggestion by the Legislative Assembly of South Austraha,
that a reserved bill should come into force unless disallowed by the Queen within one
year, was supported by Dr. Cockbum, on the ground that "the veto, if exercised,
should be expressly exercised, and not simply brought into efifect bj^ silence." Mr.
Isaacs pointed out that this would mean that a law should take efl'ect without the
Queen's assent. The amendment was negatived. (Conv. Deb., Syd.. 1897, pp. 779-82.)
At the Melbourne session, drafting amendments were made before the first report awl
after the fourth report.

§ 270. "A Proposed Law Reserved."

The power of reservation will be exercised by the Governor-General according to his
discretion. The principal consideration influencing his discretion will probably be
whether the proposed law is in conflict with Imperial legislation applicable to the
colonies, or inconsistent with the treaty obligations of Her Majesty's Government.

The following are extracts from a return presented to the House of Lords on the
motion of the Earl of Onslow (2nd August, 1894) giving particulars of (1) Acts passed by
both Houses of the Legislatures and assented to by Governors of Colonies possessing
Responsible Government, and subsequently disallowed ; (2) bills reserved, as to which
Her Majesty was subsequently advised to withhold her assent, showing in each case
whether the principle contained in such measure had or had not, up to the date of the
return, become law in the colony : —

DOMINION OF CANADA.

Title.

1868—

A Bill to fix the salary of the Gover-
nor-General {reserved)

1872—

A Bill to amend the Act respecting
Copyright

187.'?—

An Act to provide for the examination
of witnesses on oath by Com-
mittees of the Senate and House
of Commons in certain cases

1874—

A Bill to regulate the construction
and maintenance of Marine
Electi'ic Telegraphs

1874--

A Bill to amend "The Extradition
Act. 1873 "

Action taken.

Assent withheld

Not assented to

Disallowed

Not assented to

Whether the principle is now law.

No change since

Partly embodied in subse«iuent
Act of 1875 ; assented to
by Order in Council, under
Imperial Act, 38 and .19
Vic. c. 53

Re-enacted and allowed, 18'

Left in abeyance. See Desp.
220. 29 October, 1874, o.
1171, p. 7

Not assented to Yes. i'ee Consolidated Statute*
of Canada, 1886, c. 14-2

J70.]

POWERS OF THE PARLIAMENT.

695

D.iMiNioy OF Caxada {Continued). —

Title.

Action taken.

>7S—
A Bill to repeal Section 23 of the

Merchant Shipping Act, 1876, as

to Ships in Canadian Waters
1nS9— Cap. 29—
A Bill to amend "The Copyright

Act," c. 62 of the Revised

Statutes
1^91— Cap. 40-
\ Bill to provide for the Marking of

Deck and Load Lines
1>>93-Cap. 22-
A Bill to amend the Merchant

Not assented to

Whether the principle is now law.

Re-enacted as cap. 24 of 1879,
to meet Boaitl of Trade
objections to original Act

Still mider consideration

See cap. 22 of 1893
Still under consideration

Load Lines

NEW SOUTH WALES.

Title.

1 Action taken.

Whether the principle is now law.

^7-5 — A Bill to enforce claims against

the Crown (reserved)
^77 — A Bill to amend the law relat-
ing to Divorce and Matrimonial
Causes (reserved)
1S79 — A Bill to amend and extend

the law of Divorce (reserved)

!^S7— A Bill to amend and extend

the law of Divorce (reserved)

Not assented to I Yes ; amended Bill of 1876

I allowed
Not assented to | Yes ; Act allowed in 1881

Not assented to Y'es ; Act allowed in 1881
Not assented to Yes ; Act of 1892 allowed

VICTORIA.

•ntie

Bill to explain to whom the term
" Crown " as used in certain cases
shall apply (leserved)
-■,0-

1 Act to pro\-ide for the better
regulation anddi.=!cipline of armed
vessels in the service of Her
Majesty's Local Government in
Victoria, No. 96 of 1890.

,: >60 -

lA Bill to abolish pensions to retiring
responsible officers (reserved)
-JO—
Ijill to amend the law relating to
Divorce and Matrimonial Causes
in Victoria (reserved)

.562 —

-^ Bill to alter the sum appropriated
to the payment of the salary and
allowances of the Governor
(reserved)

1862-

A Bill to give a preferable lien on
growing crops without delivery
(.reserved)

Action taken.

Whether the principle is now law.

Not assented to
Disallowed

Not assented to
Not assented to

Yes ; see the Colonial Naval
Defence Act, 1865, 28 and
29 V^ic. c. 14

Amendetl Bill passed and
assented to, 18tj4

Yes ; Bill passed and asseutefl
to, 1864

Amended Bill passed in 1863,
and assented to, 1864

Yes ; similar measure passed,
1876

696

COMMENTARIES ON THE CONSTITUTION. [Sec. 60.

QUEENSLAND.

Title.

Action taken.

Whether the principle is now law.

1860—

A Bill to amend the constitution of

Not assented to

the Supreme Court of Queens-

land, and to provide for the

better administration of justice

(reserved)

1874—

A Bill to consolidate and amend the

Not assented to

Amended Bill, passed in 1H77.

laws relating to the marine board,

assented to

navigation, pilotage, harbour

lights, and the keeping and

carriage of gunpowder (reserved)

1875—

A Bill to legalize the marriage of a

Not assented to

Yes ; Bill passed in 1877,

man with the sister of his

assented to

deceased wife (reserved)

1879-

A Bill relating to wrecks, casualties,

Not assented to

Yes ; by the Colonial Courts

and salvage (reserved)

of Admiralty Act, 1890.
53 and 54 Vic. c. 27

1881-

A Bill to provide for the execution

Not assented to

Yes: see the Fugitive Offenders

in Queensland of warrants of

Act, 1881, 44 and 45 Vic.

apprehension issued in other

c. 69

colonies (reserved)

A Bill to prevent the influx of foreign

Not assented to

and other criminals into Queens-

land (reserved)

SOUTH AUSTRALIA.

Title.

Action taken.

1860-

A Bill to legalize the marriage of a
man with the sister of his
deceased wife (reserved)

1862-

An Act to amend the Acts relating
to marriage in the Province of
South Australia, by extending
certain provisions thereof to per-
sons professing with the Society
of Friends, called Quakers

1863 -

A Bill to legalize the marriage of a
man with the sister of his
deceased wife

1864-

Au Act to amend the Marine Board
Act of 1860

1864—

An Act to repeal Act, No. 18 of
1857-58, intituled, " An Act to
prevent the introduction into the
Province of South Australia of
convicted felons and other per-
sons sentenced to transportation
for offences against the laws,"
and to make other provision in
lieu thereof

Not assented to

Disallowed

Not assented to

Disallowed

Whether the principle is now law.

Yes ; Bill passed in IS'l.
assented to

Yes ; amended Bill, passed m
1864

Yes ; Bill ^mssed in 1871
assented to

Further legislation in 188..
1873, 1876, 1878, 1881-82

f«70.]

POWERS OF THE PARLIAMENT.

697

South Acstralia {Continued).

IsTO—

A Bill to legalize the marriage of a
man with the sister of his
deceased wife (reserved)

\ Uill to make better provision for
the interchange of colonial pro-
ducts and manufactures between
the Colonies of Australasia
(reserved)

^71—

. Rill to provide for the regulation
of precedency in South Australia
(reserved)

-vtl —

\ Bill to amend the Marine Board
and Navigation Act, 1881 f re-
served)

Action taken.

Whether the principle is now Uw.

Not assented to

Yes; Bill passed in 1871.
assented to

Yes ; see Australian Colonies
Duties Act, 1873, 36 Vic.
c22

Governor informed, 7th June,
1893

TASMANIA.

Title.

Action taken. i Whether the principle is now Uw.

Bill to pro\'ide for the abolition,
upon certain terms, of State aid
to religion in the Colony of
Tasmania (reserved)

>;i —

Bill to alter the sum payable for
defraj-ing the allowances and
contingent expenses of the
establishment of the Governor of
Tasmania vreserved)

-03-

Act to make further provision
for the control and disposal of
offenders under sentence of im-
prisonment

67-

Bill to reduce the salary and
allowance of any future Governor
of Tasmania (reserved)

67—
Bill to promote intercolonial
free trade (reserved)

168—
Bill to reduce the allowances of
every future (iovemor of Tas-
mania (reserved)
70-

. Bill to make better provision for
the interchange of Colonial pro-
ducts and manufactures between
the Colonies of Australasia
(reserved)

IX)-

4iill to amend " The Crown Redress
Act " (reserved)

Not assented to
Not assented to

Disallowed

Not assented to

Not assented to
Not assented to

Not assented to

Not assented to
(by desire of
Colonial Gro-
vernment)

Yes ; Bill passed in 1868,
assented to

No. (This Act affected the
Governor then in office)

Bill passed in 1873, assented
to ; further Act, 1883

Act of 1873 allowed ; passed
after the enactment of the
Australian Colonies Duties
Act, 1873, 36 Vie. c. 22

Act of 1891 allowed

t)98

COMMENTARIES ON THE CONSTITUTION. [Sec. 60.

NEW ZEALAND.

Title.

1856—

An Act to empower the superin-
tendents and provincial councils
to enact laws for regulating the
sale, letting, disposal, and occupa-
tion of the waste lands of the
Crown

1856—

A Bill to enable the native tribes of
New Zealand to have their
territorial rights ascertained, and
to authorize the issue in certain
cases of Crown grants to natives
(reserved)

1860—

A Bill to establish a council to assist
in the administration of native
affairs (reserved)

1861—

A Bill to enable the superintendent of
the Province of Marlborough to
construct a railway from Pictou
Harbour to the Wairau, both in
the said Province of Marlborough
(reserved)

186.3—

A Bill to enable provincial legislatures
to pass laws authorizing the
compulsory taking of land for
worksof apublicnature (reserved)

1866—

An Act for indemnifying persons
acting in the suppression of the
native insurrection

1867—

A Bill to alter the salary of the
Governor of New Zealand

1870—

A Bill respecting reciprocity with
the Australasian Colonies and
Tasmania, as to Customs Duties
(reserved)

1873—

A Bill to provide for the surrender of
fugitive criminals (reserved)

1883—

A Bill to facilitate the confederation
with, and annexation to, the
Colony of New Zealand of any
Island or Islands in the Pacific
the Government or constituted
authority of which may make pro-
posals to that effect to the Govern-
ment of New Zealand (reserved)

Action taken. Whether the principle is now law.

Disallowed

Not assented to

Not assented to
Not assented to

Not assented to

Disallowed

Not assented to
Not assented to

Bill passed and assented to,
1866 or 1867, ami since
repealed

Amended Act, passed in 1867
allowed

Yes ; »ee Australian Colonie*
Duties Act, 1873. ;<6 ^'-
c. 22

Yes ; Bill passed in !>■
assented to

THE EXECUTIVE GOVERNMENT. 699

CHAPTER II.— THE EXECUTIVE
GOVERNMENT-'^

§ 271. "The Executive GoYernment.'*

The term government is sometimes specially used to denote the Executive authority

: a political State. Strictly speaking, however, it comprehends all the organic agencies

in the legislative, administrative, and judicial regulation of public affairs. The

onwealth is a united political community, composetl of the people and of the

The organization and distribution of its governing instrumentalities are

ined by the Constitution. Under that instrument the political government of

Commonwealth is partitioned and divided among two separate sets of ruling organs.

Hie organs of Federal Government as proWded in Chapters I., II., and III., and (2)

organs of State Governments as provided in Chapter V. The Federal Government

ts of a Parliament, an Executive, and a Judiciary, and the Government of each

similarly consists of a Parliament, an Executive, and a Judiciar}. Chapter I.

the structure and power of the Federal Parliament ; we now come to the

leration of Chapter II. which defines the structure and power of the Federal

tive.

The tripartite division of every government into Legislative, Executive, and

I departments has been already referred to and illustrated ; it is a di\ision

m to and inherent in alike federal and unitarian governmental systems. lu the

itution of the Commonwealth there is a sharp distinction drawn between the

tive. Executive, and Judicial powers, and a separate and independent organization

for the exercise of each. The Legislative functions of the Federal Parliament

clearly and expressly defincfl by the Federal Constitution ; so also the Legislative

iOns of each State Parliament are defined in the Constitution of each State which

ues in full force and efiect, subject only to the Federal Constitution (sees. 106-7).

Executive functions of the Federal Government are clearly and expressly defined by

Federal Constitution ; so also the Executive functions of each State Government are

b}' the State Constitution and State laws founded thei-eon, subject only to the

Ideral Constitution. The Judicial powers of the Federal Courts are clearly and

* iressly defined by the Federal Constitution ; so also the Judicial powers of the State

< arts are preserved by the State Constitutions, subject only to the Federal Constitution.

The Executive authority, in the system of government established by the Federal

< Qstitution, includes all those discretionarj- or mandatory acts of government which
c 1 be lawfully done or permitted by the Executive Government, in pursuance of powers
V ted in it, or in pursuance of duties imposed upon it partly by the Constitution and
Jtly by Federal legislation. Generally described, the powers and duties of the

I leral Executive Government relate to the execution and maintenance of the Constitu-

I I and the execution and maintenance of the laws of the Federal Parliament,
p sed in pursuance of the Fe<leral Constitution.

Among the principal executive powers and functions which may be found in various
sitions of the Constitution may be mentioned the following, viz., the appointment of
ties for the holding of sessions of Pailiament, the prorogation of Parliament, the
d solution of the House of Representatives, the summoning of Parliament to meet (sec.
the issue of writs for general elections of members of the House of Representatives
32) ; the transmission of messages to the Federal Parliament recommending the
a ropriation of revenue or money (sec. 56) ; the dissolution of the Senate and the

700 COMMP]NTARIES ON THE CONSTITUTION. [Sec. 81.

House of Representatives simultaneously (sec. 57) ; the convening of a joint sitting of the
members of the Senate and of the House of Representatives (sec. 57); the choice and
summoning of Executive Councillors (sec. 62) ; the establishment of departments of
State and the appointment of political officers to administer departments of State (s«c.
64) ; the command of the naval and military forces of the Commonwealth (sec. 68) ; the
proclamation of dates on which certain departments of the public service shall become
transferred to the Commonwealth (sec. 69) ; the appointment of Justices of the High
Court and of other Federal Courts (sec. 72) ; the drawing of money from the treasury of
the Commonwealth in pursuance of appropriation made by law (sec. 83) ; the control of
departments of the public service transferred to the Commonwealth (sec. 84) ; the
appointment and control of public officers in the service of the Commonwealth (sec. 67).
The foregoing are some of the powers and duties of the Federal Executive, as enumerated
in the Constitution. But other powers, duties, and functions will hereafter form the
subject of Federal legislation.

Nationalism of the Executive. — The Executive Government established by this
Constitution is essentially national in form, as well as in its powers and functions. It
is true that the Council of the Crown, from which political officers to administer the
departments of state are selected, is described as the Federal Executive Council. In
that collocation the phrase " federal " is not inconsistent with " national." (Foster on
the Constitution, I. p. 92.) In structure the Executive is certainly national. The
framers of the Constitution refused to build it according to federal principles, b}' making
it dependent upon or partly elected by the Senate. The Governor-General, as tlie
official head of the Executive, does not in the smallest degree represent any federal
element ; if he represents anything he is the image and embodiment of national unity
and the outward and visible representation of the Imperial relationship of the Commou-
wealth. In selecting his Prime Minister, the Governor-General will be constrained to
choose the statesman who possesses the confidence of the people of the Commonwealth
as a whole, and that confidence will be mainly evidenced by the majority which he can
command in the national Chamber. In a speech delivered at Halifax in August, 1873,
Lord Dutferin, then Governor-General of Canada, indicated the ideal position of i
representative of the Crown as follows : —

Mj' only guiding star in the conduct and maintenance of my official relations \»uii
your public men is the Parliament of Canada. I believe in Parliament, no matter which
way it votes ; and to those men alone whom the deliberate will of the Confederate
Parliament of Canada may assign to me as my responsible advisers, can I give my
confidence. Whether they are heads of this party, or of that party, must be a matter
of indifl'erence to the Governor-General ; so long as they are maintained ho is bound to
give them his unreserved confidence, to defer to their advice, and to loyally assist them
with his counsels. As a reasonable being he caimot help having convictions on the
merits of different policies, Init these considerations are abstract and speculative anu
devoid of practical eflfect in his official relations. As the head of a constitutional State,
engaged in the administration of Parliamentary government, the (iovernor-lienenil h»*
no political friends — still less can he have political enemies. The possession, or beins
suspected of such possession, would destroy his usefulness. (Leggo's Life of I."
Dufferin, 662.)

The powers and functions of the Executive of the Commonwealth are for the mo"^
part national. The execution and maintenance of the Constitution, the execution w
maintenance of the Federal laws, and the Command-in-Chief of the naval M"
military forces, are the foremost attributes of a national government. Annexed, no*
ever, to the Command-in-Chief of the naval and military forces are obligations of a leders
character. One of those obligations is imposed by sec. 119, which requires the Comnio"
wealth to protect every State against invasion, and, on the application of the bxecu i>'
Government of the State, against domestic violence.

S7S.) THE EXECUTIVE GOVERNMENT. 701

Executive power.

61. The executive power of the Commonwealth^^ is
dsted in the Queen'^', and is exereiseable by the Governor-
JeneraP^ as the Queen's representative, and extends to the
xecution and maintenance of this Constitution, and of the
\wa of the Commonweahh.

Casada.— The Executive Government and Aathorit} of and over Canada is hereby declared to
continue and be vested in the Queen. (B.X.A. Act, 1867, sec. 9.)

Historical Note. — In the Commonwealth Bill of 1891, the substance of this section
I contained in clauses 1 and 8 of Chap. H. (Conv. Deb., Syd. (1891) pp. 777-8.)
At the Adelaide session, the clauses were introduced in the same form. In Com-
ittee, Mr. Reid and Mr. Carruthers suggested adding "in Council'' after "(rovemor-
BtaL" Mr. Reid argued that the prerogative, so far as the colonies were concerned,
limited to the right of assembling, proroguing, and dissolving Parliament, pardoning
iers, is.suing proclamations, &c. Executive acts were always done on the advice of
(e Executive Council ; the refusal to receive advice was not an Executive Act at all.
Barton replied tliat Executive acts were either ( 1 ) exercised by prerogative, or (2)
itory. Constitutional practice would prevent the prerogative, except occasionally,
; exercised without ministerial advice, and the words were unnecessary and opposed

;e. Xo amendment was moved. (Conv. Deb., AdeL, pp. 908-15.)
At Sydney, Mr. Reid obtained the substitution of " exercisable " for "exercised"-^
ently to avoid a direction to the Queen, and make the words declaratory. (Conv.
Syd., p. 782.)

At Melbourne, the words " and authoritj' " (after " power ") were omitted ; and after
I fourth report the two clauses were condensed into one. (Conv. Deb. Melb. p. 1721.)

272. " The Executive Power of the Commonwealth."

The expression, " The Executive power of the Commonwealth," must be read to
the Fefleral Executive power as distinguished from the Executive power reserved
itbe States. As to the secondary meaning ot the term " Commonwealth," in which it
uivalent in signification to Federal Government, .see note, § 43, stijtra. The
ecutive power reserved to the States b}' the Federal Constitution is as much a part of
'Ij Executive power of the Commonwealth, as a united political commimity, as the
J deral Executive power ; both powers are but sub-divisions or fractions of the one
-^ i«-80vereign power, as Mill appear in the foUowint; conspectus : —

Commonwealth gutwi-Sovereignty

Federal Constitution

Federal Government State Government

ederal Federal Fetleral State State State

I-liament Executive Judiciary Parliament Executive Judiciary

It may be said that the whole mass of the Executive authority of the Commonwealth

is .i^^ded into two parts ; that portion which belongs to the Federal Government, in

tiition to Federal afifairs, being assigned to the Governor-General as the Queen's

P iresentative, and that portion which relates to matters reserx-ed to the States being

ted in Governors of the States. The Executive authority reserved to the Governors

702 COMMENTARIES ON THE CONSTITUTION. [Sec. 61.

of the States, is of the same origin but of higher antiquity than that newly created
authority conferred on the Governor-General. The State Executive authority is of as
much importance within its sphere as the Federal Executive authorit}^ is within the
Federal sphere. The Executive authority possessed by a State Governor, acting as the
Queen's Representative in and for a State, is not of a subordinate nature, or of an
inferior quality ; it is of the same nature and quality as that possessed by the Queen's
Representative acting in the name of the Commonwealth. See the arguments in the
Attorney-General of Canada v. Attorney-General of Ontario (1892, 3 Ont. App. 6).

§ 273. "Vested in the Queen."

The Federal Executive power granted by this Constitution is vested in the Queen.
This statement stereotypes the theory of the British Constitution that the Crown is the
source and fountain of Executive authority, and that every administrative act must be
done by and in the name of the Crown.

" We are at the present day so accustomed to think and to speak of the Government
of Sir Robert Peel or Lord Riissell, of Lord Derby or Lord Palmerston, that we almost
overlook the Royal Personage whom these Statesmen serve. We forget the Queen for
the Minister. The means, as so often happens, obscure the end ; the object limited is
lost in the limitation. Yet whatever may be our mode of speech, anj' such indistinctness
of thought will effectually exclude all clear views of the Constitution. In our political
system the Crown alwaj's has been and still is the sun." (Hearn's Gov. of Eng. p. 16.)

" They derive everj^thing from the Crown, and refer everything to its honour and
advantage. Nor is this less true of the modern form of our Constitution than it was of
an age when the prerogative was exercised chiefly for the King's personal benefit. The
histre of the triple crown of the United Kingdom is not less brilliant than the lustre of
that single crown of England which rested on the brows of our Henries and our Edwards.
With us no less than with all our ancestors, ever since England was a nation, the Crown
enacts laws ; the Crown administers justice ; the Crown makes peace and war and
conducts all the affairs of State at home and abroad ; the Crown rewards tliem that have
done well, and punishes the evil doers ; the Crown still enjoys the other splendid
prerogatives vvhich have at all times graced the diadem of Englantl." (Id. p. 17.)

In our analysis of sec. 1 of this Constitution we have seen that the dictum that " the
Crown still enacts the law," is not strictly applicable to the legislative department of
the Federal Government, seeing that by that section the legislative power is vested in a
Federal Parliament, in which the Senate and the House of Representatives are co-ordinate
branches with the Queen. The old theory of legislation has been encroached upon, to
some extent, by that section. The dictum that " the Crown conducts all the affairs of
State," is still true in theory, and has been followed and maintained in form, by sec. 61,
which says that the executive power of the Federal Government is vested in the Queen.

§ 274. " Exercisable by the Governor-General."

The Executive power vested in the Queen is exercisable by the Governor-( General as
the Queen's Representative. The Governor-General appointed by the Queen is authorized
to execute, in the Commonwealth, during the Queen's pleasure and subject to the
Constitution, such powers and functions as may be assigned to him by Her Majestj'
(sec. 2) and by the Constitution (sec. 61). Foremost amongst those powers and functions
will necessarily be the execution and maintenance of the Constitution, and the execution
and maintenance of the laws passed in pursuance of the Constitution.

§ 275.] THE EXECUTIVE GOVERNMENT. 70a

Federal Executive Council.

62. There shall be a Federal Executive Council to
advise the Governor-General-'^ in the Government of the
Commonwealth, and the members of the Council shall be
chosen and summoned by the Governor-General and sworn as
the Executive Councillors, and shall hold office during his
pleasure.

Cakada.— There shall be a Council to aid and ad\ise in the Government of Canada, to be
st.vled the Queen's Privy Council for Canada ; and the persons who are to be members of
that Council shall be from time to time chosen and summoned b.v the Governor-General
and sworn in as Privy Councillors, and Members thereof may be from time to time removed
by the Governor-General. — B.X.A. Act, 1S6T, sec. IL

Historical Note. — The clause in the Commonwealth Bill of 1891, which was
adopted verbatim at Adelaide in 1897, only differed verbally from the section as it now
stands. At Adelaide Mr. Glynn suggested that the Executive Council should consist
only of Cabinet Ministers ; but he moved no amendment. (Conv. Deb., Adel., p. 915-6.)

At Sydney, Sir Richard C. Baker proposed to add "of six" after "Executive
Council." This he intended as a test question between Responsible Government and
Elective Ministers, and he proposed to follow it up, if it were canied, with a provision
tliat three Ministers should be chosen by the Senate and three by the House of Repre-
sentatives at the commencement of eaw;h Parliament, to hold oflSce for three years tmless
a joint sitting of both Houses should otherwise determine. He thought Cabinet Govern-
ment inconsistent with federation, because the one meant responsibility to one
predominant House, and the essence of the other was two co-ordinate and approximately
co-equal Houses. Dr. Cockbum supported the amendment ; Mr. Higgins and Mr.
Carruthers opposed it. It was negatived without di^^sion. (Conv. Deb., Syd., 1897,
pp. 782-92.)

At Melbourne, drafting amendments were made before the first report and after the
fourth report. (Conv. Deb., Melb., p. 2453.)

§ 275. "A Federal Executive Council to Advise the
Governor-General.*'

Whilst the Constitution, in sec. 61, recognizes the ancient principle of the Govern-
ment of England that the Executive power is vested in the Crown, it adds as a graft to
that principle the modem political institution, known as responsible government, which
shortly expressed means that the discretionary powers of the Crown are exercised by the
wearer of the Crown or by its Representative according to the ad Nice of ministers, having
the confidence of that branch of the legislature which immediately represents the people.
The practical result is that the Executive power is placed in the hands of a Parlia-
mentary Committee, called the Cabinet, and the real head of the Executive is not the
Queen but the Chairman of the Cabinet, or in other words the Prime Minister. (Dicey,
Law of the Const, p. 9. ) There is therefore a great and fundamental difference between
the traditional ideal of the British Constitution, as embodied in sec. 61, giving full
expression to the picture of Royal authority painted by Blackstone (Comm. I. p. 249)
and by Heam (Gov. of Eng. p. 17), and the modern practice of the Constitution as
crystallized in the polite language of sec. 62, " there shall be a Federal Executive Council
to advise the Governor-General in the Government of the Commonwealth." (See Note
on the Cabinet, p. .382, mpi-a.)

" There are perhaps few political or historical subjects with respect to which so much
misconception has arisen in Australia as that of Responsible Government. It is, of
course, an elementarj' principle that the person at whose volition an act is done is the
proper person to be held responsible for it. So long as acts of State are done at the

704 COMMENTARIES ON THE CONSTITUTION. [Sec. 62.

volition of the head of the .State he alone is responsible for them. But, if he owns no
superior who can call him to account, the only remedy against intolerable acts is
revolution. The system called Responsible Government is based on the notion that the
head of the State can himself do no wrong, that he does not do any act of State of his
own motion, but follows the advice of his ministers, on whom the responsibility for acts
done, in order to give effect to their volition, naturall}' falls. They are therefore called
Responsible Ministers. If they do wrong, they can be punished or dismissed from
office without effecting any change in the Headship of the State. Revolution is therefore
no longer a necessary possibility ; for a change of Ministers effects peacefully the desired
result. The system is in practice so intimately connected with Parliamentary Government
and Party Government that the terms are often used as convertible. The present form
of development of Responsible Government is that, when the branch of the Legislature
which more immediately represents the people disapproves of the actions of Ministers, or
ceases to have confidence in them, the head of the State dismisses them, or accepts their
resignation, and appoints new ones. The effect is that the actual government of the
State is conducted by officers who enjoy the confidence of the people. In practice they
are themselves members of the Legislature. . . . The ' sanction ' of this unwritten
law is found in the power of the Parliament to withhold the necessary supplies for
carrying on the business of the Government until the Ministers appointed by the Head of
the State command their confidence. In practice, also, the Ministers work together as
one body, and are appointed on the recommendation of one of them, called the Prime
Minister. And, usually, an expression of want of confidence in one is accepted as a
censure of all. This is not, however, the invariable rule ; and it is evidently an
accidental and not a fundamental feature of Responsible Government." (Sir Samuel
Griffith, Notes on Australian Federation, 1896, pp. 17-18.)

The gradual transfer of the executive power from the sovereign to Responsible
Ministers forms one of the most remarkable and interesting revolutions recorded in the
history of England. Ever since the resignation of Sir Robert Walpole in 1742, it has
been recognized that the Crown could not for any length of time continue to carry on
the government of the country, except through Ministers having the confidence of the
House of Commons. That constitutes the essence of Responsible Government. It was
the great ambition of the framersof the Australian Constitutions of 1855-6 to acclimatize,
in the colonies which they were then helping to found, the sj'stem thus known as
Responsible Government. The Constitution Act of New South Wales, as well as those
of Victoria and South Australia, contained a clause which to some extent amounted to a
statutory recognition of that system. It was to the eSect that *' the appointment of all
public offices under the Government of the colonj' hereafter to become vacant or to be
created, whether such offices be salaried or not, shall be vested in the Governor with the
advice of the Executive Council, with the exception of the appointments of the officers
liable to retire from office on political grounds, as hereinafter mentioned, which
appointments shall be vested in the Governor alone. Provided always that this
enactment shall not extend to minor appointments which by the Act of the Legislature
or by order of the Governor and Executive Council may be vested in heads of
departments or other officers or persons within the colony." (Sec. 37.)

Annexed to each of those Constitutions was a civil list providing compensation for
the holders of high departmental offices in each colony on their retirement from office on
political grounds. The Constitution of South Australia was clear in the expression of
its intention to introduce Responsible Government, for, by sec. 32, it required the
holders of certain public offices to occupy seats in Parliament ; whilst sec. 39 was
particularly explicit in its intention that officers administering public departments would
have to retire from office upon their ceasing to retain the confidence of the Colonial
Parliament.

The Federal Executive Council is founded on the model of the Executive Council
tsstablished in each colony. The members of the Executive Council will be chosen,
summoned and sworn in by the Governor-General ; they will hold office during his
pleasure, in the same manner that members of the Executive Council in each State are
chosen, summoned, sworn in, and hold office.

It must be remembered, however, that the Executive Council as created by statute
is not the Cabinet as known in parliamentary practice. The Cabinet is an informal

§275.] THE EXECUTIVE GOVERNMENT. 705

body having no definite legal status ; it is in fact an institution unkuo\vn to the law ; it
exists by custom alone, and yet it is the dominant force in the Executive Government of
every British country. The Executive Council corresponds to the Privy Council of
England, a Council of the Crown whose origin can be traced back to the earliest period
of English history. The Executive Council also corresponds to the Privy CouncQ of
Canada, which was established in the Dominion by the British North America Act, 1867.
As the Crown in England may appoint and summon to the Imperial Privj- Council
worthy and distinguished subjects of the Queen, whether they be members of Parlia-
ment or not, so the Crown in the Commonwealth may appoint, and summon to the
Executive Council, citizens of merit and ability who are c-onsidered worthy of the
honour, Ttithout reference to Parliamentary qualifications. Their tenure of office is
<luring the pleasure of the Cro\vn. Membership of the Imperial Privj- Council, like
membership of the Federal Executive Council, carries with it titular honours and
distinction, but not necessarily any office or place of profit under the Crown. It is,
however, from among those members of the Privy Council in England, and of the
Executive Council of the Commonwealth, who are also members of Parliament, that
persons are selected to become officers administering departments of State, and hence
responsible servants of the Crown. The persons so selected constitute the Ministry or
Cabinet, and are styled " the Queen's ilinisters of State." Membership of Parliament
is, as a matter of custom, essential as a qualification for appointment as a political
minister, although in the absence of express statutory enactment it is not absolutely
necessary, either in England or the colonies.

As to the question whether under the Constitution of the Commonwealth there can
be, as there frequently are in the Cabinets of the States, " Ministers without portfolios,"
who partake of the general responsibility of the Ministry, but do not administer
departments of State, see Note "The Queen's Ministers of State," § 278, infra.

There are thus two conunonly recognized qualifications necessary for ministerial
appointment, (1) membership of the Privy or Executive Covmcil, (2) membership of
Parliament. From the point of \new of the first qualification the ministry may be
described as a select committee of the Privy or Executive Council ; the remaining
members of that body not being summoned to attend either the meetings of committees
or the ordinary meetings of the Council. From the point of view of the second qualifi-
cation the ministry may be called a Parliamentary committee, whose composition and
policy is determined by the party commanding a majority in the national chamber.

In the formation of a Cabinet the first step is the choice and appointment of its
President or spokesman, the Prime ilinister ; he is chosen and appointed bj' the Crown
or by its representative. In the choice of a Prime Minister, however, the discretion of
the Crown is fettered ; it can only select one who can command the confidence of a
majority of the popular House. The other members of the Cabinet are chosen by the
Prime Minister and appointed by the Crown on his recommendation.

Some of the pre-eminent features of Cabinet organization, and some of the rules of
Cabinet discipline and government, may be here presented. The proceedings of the
Cabinet are conducted in secret and apart from the Crown. The deliberations of the
Executive Council are presided over by the representative of the Crown. Resolutions
and matters of administrative policy requiring the concurrence of the Crown, decided
At meetings of the Cabinet, are formally and officially submitted to the Executive Council,
where they are recorded and confirmed. The principle of the corporate unity and
solidarity of the Cabinet requires that the Cabinet should have one harmonious poUcy,
both in administration and in legislation ; that the adWce tendered by the Cabinet to
the Crown should be unanimous and consistent ; that the Cabinet should stand or fall
together.

The Cabinet as a whole is responsible for the advice and conduct of each of its
members. If any member of the Cabinet seriously dissents from the opinion and policy
approved by the majority of his colleagues it is his duty as a man of honour to resign.
ib

706 COMMENTARIES ON THE CONSTITUTION. [Sec. 62.

Advice is generally comninnicated to the Crown by the Prime Minister, either personally
or by Cabinet minute. Through the Prime Minister the Cabinet speaks with united
voice. The Cabinet depends for its existence on its possession of the confidence of that
House directly elected by the people, which has the principal control over the finances
of the country. It is not so dependent on the favour and support of the second Chamber,
but at the same time a Cabinet in antagonism with the second Chamber will be likely to
suflFer serious difficulty, if not obstruction, in the conduct of public business.

This brings us to a review of some of the objections which have been raised to the
application of the Cabinet system of Executive Government to a federation. Tliese
objections have been formulated with great ability and sustained with force and
earnestness by several Australian federalists of eminence, among whom may be mentioned
the names of Sir Samuel' Griffith, Sir Richard C. Baker, Sir John Cockburn, Mr. Justice
Inglis Clark, and Mr. G. W. Hackett, who have taken the view that the Cabinet system
of Executive is incompatible with a true Federation. (See "The Executive in a
Federation," by Sir Richard C. Baker, K.C.M.G., p. 1.)

In support of this contention it is argued that, in a Federation, it is a fundamental
rule that no new law shall be passed and no old law shall be altered without the consent
of (1) a majority of the people speaking by their representatives in one House, and (2) a
majority of the States speaking by their representatives in the other house ; that the
same principle of State approval as well as popidar approval should apply to Executive
action, as well as to legislative action ; that the State should not be forced to support
Executive policy and Executive acts merely becaiise ministers enjoyed the confidence of
the popidar Chamber ; that the State House would be justified in withdrawing its
support from a ministry of whose policy and executive acts it disappioved ; that the
State House could, as effectually as the primary Chamber, enforce its want of confidence
by refusing to provide the necessary supplies. The Senate of the French Republic, it
is pointed out, has established a precedent showing how an Upper House can enforce its
opinions and cause a change of ministry. On these grounds it is contended that the
introduction of the Cabinet sj'stem of Responsible Government into a Federation, in
which the relations of two branches of the legislature, having equal and co-ordinate
authority, are quite different from those existing in a single autonomous State, is
repugnant to the spirit and intention of a scheme of Federal Government. In the end
it is predicted that either Responsible Government will kill the Federation and change
it into a unified State, or the Federation will kill Responsible Government and substitute
a new form of Executive more compatible with the Federal theory. In particular,
strong objection is taken to the insertion in the Constitution of a cast-iron condition
that Federal Ministers must be members of Parliament. Membership of Parliament, it
is argued, is not of the essence of Responsible Government, but only an incident or aD
sccidental feature, which has been introduced by modern practice and by statutory'
innovation.

Two suggestions have been made, the adoption of either of which will tend to mould
a 'form of Executive in harmony with the Federal principle. The first is that the
ajjproval of the Senate shoidd be demanded as a condition precedent to the original
appointment of Federal Ministers, subject to the understanding that once Ministers
were so approved by the Senate, the Senate should not withdraw its approval, but that
Ministers should remain in office as long as they retained the confidence of the House of
Representatives. The second proposal is that Federal Ministers should be elected for a
fixed term, at a joint sitting of the members of both Federal Houses. (Sir Samuel
Griffith, Notes on Australian Federation, 1896, p. 20.) If it is desired to prevent a
theoretical Federation from becoming a practical amalgamation "we must look for an
adaptation of a Swiss form for our ideal of a Federal Executive." (Sir Richard C. Baker,
The Executive in a Federation, 1897, p. 18.)

It is not our province to comment on the opinions and contentions of these eminent
federalists. Their views have not been accepted ; and, for better or for worse, the

§§ 275-276 ] THE EXECUTIVE GOVERNMENT. 707

system of Responsible Government as known to the British Constitution has been prac-
tical!}' embedded in the Federal Constitution, in such a manner that it cannot be disturbed
without an amendment of the instrument. There can be no doubt that it will tend in
the direction of the nationalization of the people of the Commonwealth, and will promote
the concentration of Executive control in the House of Representatives. At the same
time it ought not to impair the equal and co-ordinate authority of the Senate in
all matters of legislation, except the origination and amendment of Bills imposing
taxation and Bills appropriating revenue or money for the ordinary annual serA'ices of
the Government.

Provisions referring to Governor-General.

63. The provisions of this Constitution referring to the
Governor-General in Council'-"^ shall be construed as referring
to the Governor-General acting with the advice of the
Federal Executive Council.

Historical Xote. — This section is identical with clause 3 of Chap. II. in the
Commonwealth Bill of 1891, and has appeared in every subsequent draft of the Bill
without altei-ation and without debate.

§ 276. " Governor-General in Council."

Certain Executive powers and functions are, by the Constitution, vested in the
Governor-General ; others are vested in the Governor-General in Council. The
distinction between these two classes of powers and fimctions is historical and technical,
rather than practical or substantiaL The particular powers and functions vested in the
Governor-General belong to that part of the Executive authority which was originally
vested in the Crown at common law, and is not at present controlled by statute ; they
are called prerogatives of the Crown. For example, the prorogation and dissolution of
Parliament, the appointment of ministers of state, and the command of the army and
na^'J', are prerogatives of the Crown, which have been exercised by the Crown from time
immemorial. Contrasted with these prerogative powers are other powers and functions,
the exercise of which b}- the Crown is now controlled by statute law ; these are not
prerogatives of the Crown, and consequently, without any appearance of invasion or
encroachment on the domain of prerogative, they are vested in and exercised by the
Governor-General m Council. Among these maj- be mentioned the issue of %vrits for the
general election of members of the House of Representatives ; the establishment of
departments of state ; the appointment and removal of public officers.

Sec. 63 is an interpretation section ; its object is to make it clear that wherever in
the Constitution there is a provision that the Governor-General in Council maj' do certain
acts, such provision refers to the Governor-General acting with the advice of the Federal
Executive Council. This, as we have already seen, means the advice of the select
committee of the Federal Executive Council kno^vn as the Ministry'.

708 COMMENTARIES ON THE CONSTITUTION. [Sec. 64.

Ministers of State.
Ministers to sit in Parliaments'^.

64. The Governor-General may appoint officers to
administer such departments^" of State of the Commonwealth
as the Governor-General in Council may establish.

Such officers shall hold office during the pleasure of the
Governor-General. They shall be members of the Federal
Executive Council, and shall be the Queen's Ministers of
State^^® for the Commonwealth.

After the first general election no Minister of State shall
hold office for a longer period than three months unless he is
or becomes a senator or a member of the House of Represen-
tatives.

Historical Note. — The original draft in 1891 was as follows : —
" For the administration of the Executive Government of the Commonwealth, the
Governor-General maj^ from time to time appoint officers to administer such Departments
of State as the Governor-General in Council may from time to time establish, and such
officers shall hold office during the pleasure of the Govemor-(Teneral, and shall be
capable of being chosen and of sitting as members of either House of the Parliament.
Such officers shall be members of the Federal Executive Council."

In Committee, Sir John Bray proposed to add that two membei's at least should be
senators, but this was negatived. Mr. Wrixon proposed to add " and responsible
Ministers of the Crown." Sir Samuel Griffith objected that this was a mere " epithet,"
and that the Ministers must be responsible in any case. Mr. Deakin cited the judgment
of the Supreme Court of Victoria in Ah Toy v. Musgrove (14 V.L.R. 349 ; 1891, App.
Ca. 272), and supported the introduction of " words claiming all the prerogatives of the
Crown directly relating to Australia." After debate, Sir Sanmel Griffith suggested the
words "and shall be the Queen's Ministers of State for the Commonwealth," which were
agreed to. (Conv. Deb., Syd., 1891, pp. 765-76.)

At the Adelaide session, the clause was introduced in the same form, with the
atlditional provision that after the first election no Minister should hold office for more
than three months without a seat in the I'arliament.

At the Sydney session, a proposal of the Legislative Council of South Australia to
omit the first portion of the clause, with a view to leaving the question of elective
Ministers open, was negatived. An amendment of the House of Assembly of Tasmania,
giving every Minister a right to sit and speak in either House (but not to vote, unless
a member) was negatived on division by 'il votes to 14. (Conv. Deb., Syd., 1897,
pp. 793-9.)

At the Melbourne session, drafting amendments were made before the first report,
and after the fourth report.

§ 277. "Officers to Administer such Departments."

The Governor-General may apjioint officers to administer sucli Federal departments
as may be established. This refers to the appointment of Federal Ministers for the time
being. Their appointment is a prerogative act, vested in the Governor-General. The
appointment, however, must be distinguished from the choice. In actual practice the
choice of the Crown is limited to the selection of the Prime Minister, and even in that
choice its discretion is restricted ; often it has no choice at all, since it must choose one
who is the official leader of the party commanding a majority in the National Chamber.

^277-278.] THE EXECUTIVE GOVERNMENT. 709

Even ia the choice of a first minister, which has been terme<l the only personal act the
King of England has to perform, that choice is practically influenced by the necessity
for its being confirmed by the approbation of Parliament. (Todd's Pari. (rov. in Col.
2nd ed. p. 17.) The other members in the Ministry are selected bj- the Prime Minister
and by him recommended to and appointed by the Crown. The tenure of office of
ministers is said to be during the pleasure of the Govemor-General, which signifies that
they will remain in power so long as they can carry on the Queen's Government.

It is assumed in this section that the Governor-General in Council can establish
departments of state for the Commonwealth. The authority of the Governor-General in
Council in that respect is restricted to the organization of such departments as may be
transferred from the States to the Commonwealth, and such others as may be necessary
for the maintenance of the Constitution and the execution of Federal laws.

The first Executive Act of the Governor-General will be the appointment of an
Executive Council under Section 62. This appointment will no doubt be made on the
day on which the Commonwealth is established. The Executive Council so appointed
will be convened and presided over by the Governor-General. One of the first Executive
Acts of the Governor-General in Council \*t11 be to determine and establish Departments
of State under Section 64. This %vill be done bj- an order in Council. Thereupon the
€k>vemor-General will appoint, from the Executive Council, officers to administer such
Departments.

§ 278. " The Queen's Ministers of State."

These remarkable words seem to be an entirely new departure in the direction of
expressing in a Constitutional Act the principles of responsible government. The words
"and shall be the Queen's Ministers of State for the Commonwealth" were introduced
by Sir Samuel Griffith at the Sydney Convention in 1891, in substitution for the words
•' and responsible Ministers of the Crown," which Mr. Wrixon had proposed to insert.
Mr. Wrixon had no doubt that the effect of the clause as it then stood — providing for
members of an Executive Council, who should administer departments of State, hold
office during the Governor-General's pleasure, and be capable of sitting in Parliament —
provided for a system of responsible government ; but he did not think that it would
clothe them with all the vast constitutional powers which, under the system of the
English Government, belong to responsible Ministers of the Crown. The greatness of
those powers, and the vastness of the authority which any responsible Minister of the
Crown exercises in binding the Crown and the sovereign, was well illustrated in the old
case of Buron i: Denman (2 Exch. 167) ; and he thought it highly important that the
Ministers of the Crown here should, in i^egard to all Australian matters, be invested
with exactly the same presumptions of authority and ratification from the Crown as
apply to Imperial Ministers.

"I myself would propose that we add to the last sub-clause 'and responsible
Ministers of the Crown ; ' and I believe that then the Court would interpret that with
reference to ordinary constitutional usage, of which they would take judicial notice, and
it is well known, of course, in England, what a responsible Minister is. It is known as
a matter of fact and constitutional law. The courts recognize that, and if we declared
that these officers were responsible Ministers of the Crown I believe the court would
import to that definition the knowletlge which they would get from reading in the light
of ordinary- constitutional law." (Mr. Wrixon, Conv. Deb., Syd., 1891, p. 767.)

Sir Samuel Griffith took an entirely different view. He thought that Mr. Wrixon's
object was already clearly provided for in the Bill, and would be made no clearer by the
amendment.

" ' Responsible Ministers of the Crown ' is a term which is used in common conver-
sation to describe the form of government that we have. It is reaUy an epithet, but a
bill is not the place for an epithet. What we should put into the bill is a definition of
the powers and functions of the officers — not call them by names We might as well say
that thev shall be called 'Honourable.' The Executive Government is vested in the

710 COMMENTARIES ON THE CONSTITUTION. [Sec. 64.

Queen. The Queen cannot act in person. She therefore, by the Governor-General,
appoints officers to administer departments of State. Is not that exactly expressing the
real theory of government — the head of the State, through her officers, administering
departments of ^tate ? The common name by which they are called is ' Ministers of
the Crown,' and because they hold office during pleasure, which pleasure is exercised
nominally by the head of the State, but in reality by Parliament, they are called
responsible, because, if their conduct is not such as to give satisfaction, they have to
answer for it by going out of office. The whole theory of responsibility is contained in
clauses 1 and 4. To say that they shall be called Ministers of the Crown would not
make them so more than they are already. The powers of officers are not vested in
them because they are called responsible Ministers, but because they are Ministers."
(Sir Samuel Griffith, Conv. Deb., Syd., 1891, p. 767.)

Sir John Bray put the matter very clearly by pointing out that though the Consti-
txition provided that these officers should administer certain departments of Slate, it did
not provide that they should administer the entire Government of the Commonwealth,
and though the provision that they were to be members of the Federal Executive
Council would probably be sufficient, he thought all doubts ought to be removed by the
adoption of Mr. Wrixon's amendment. Mr. l^nglis Clark, contended that the responsi-
bility of Ministers flowed, not from their administering departments of State, but from
their being members of the Executive Council. But Mr. Deakin pointed out that in
some of the colonies a man remained an Executive Councillor after he had ceased to be a
Minister, and contended that a distinction should be expressed between those who were
Executive Councillors and not Ministers, and those who were Executive Councillors and
Ministers. Moreover, it might be contended that the authority given to members of
the Executive Council was given to them as a whole, sitting in Council, and that it did
not clothe the Ministei's individually with that power and authority which Ministers in
Great Britain possess as Responsible Ministers of the Crown. Doubts had already been
raised as to the authority of Ministers in the colonies (Ah Toy v. Musgrove, 14 V.L.R.
349), and there should be no doubt as to the authority of Ministers of the Common-
wealth.

" Complete as is the skeleton of constitutional government which the hon. member
Sir Samuel Griffith has given us in these clauses, I maintain that it is, after all, only a
skeleton, and that the life which is implied by its being administered by Responsible
Ministers has yet to be imparted to it. We do not desire to introduce words which
might seem to claim for Australia royal prerogatives ; but we do wish to introduce
words claiming all the prerogatives of the Crown directly relating to Au.stralia. What
we say is that these clauses, as they stand, do not with sufficient distinctness make that
claim, and that we should seize every opportunity of placing points of this importance
beyond all dispute, that we should embody in these clauses the claim of Ministers of the
Commonwealth to exercise all the prerogatives of the Crown which may be necessary in
the interests of the Commonwealth. I would ask the hon. member. Sir Samuel fJriftith,
to himself suggest a phrase, and in default of that to accept my hon. colleague's amend-
ment." (Mr. A. Deakin, Conv. Deb., Syd., 1891, p. 773.)

Mr. Kingston agreed that every effort ought to be made to secure Mr. Wrixon's
object, and to ensure that the Ministers of the Commonwealth should be clothed with
all necessary powers. At the sanie time, he thought that there was some room for
objection to the word "responsible."

" We know what we wish to do. We desire to confer on the executive Ministers the
right to exercise this prerogative as far as the Commonwealth is concerned, but I do not
think we desire to expressly perpetuate responsible government. I am certainly an
advocate for the continuance of that system ; but in view of the discussion which took
place at a previous stage, I think we have done well in avoiding the use of any expression
which, it might be urged, would have the efiect of preventing us from altei-ing our
practice with reference to responsible government in future as occasion maj' require. I
hope the hon. member who has moved the amendment will leave out this word to which
I have referred, and to which it seems that objection can fairly be taken." (Mr. C. C.
Kingston, Conv. Deb., Syd., 1891, p. 775.)

Finally Sir Samuel Griffith suggested the words "and shall be the Queen's Ministers
of State for the Commonwealth," which Mr. Wrixon accepted as adequately carrjnng out
his object.

§§278-279.] THE EXECUTIVE GOVERNMENT. 711

The above debate is valuable, not merely as a guide to the intentions of the framers,
but as an exposition of the meaning of the words under discussion. It remains, however,
to discuss some other aspects of the matter.

The object of the words is to secure a formal recognition of the authority of the
Ministers of the Commonwealth individually and collectively. But they do more than
that ; they formally recognize, not indeed every phase or feature of what is currentlj'
known as " responsible government," but the existence of a bodj' something like a
Cabinet within the Executive Council— a committee whose members are individually
Ministers of Departments, and collectively " the Queen's Ministers of State for the
Commonwealth.'"' In other words, some kind of Cabinet, or Ministry, as distinct from
the Executive Council, or from its EInglish equivalent the Privy Council, has a status
recognized b\- the express words of the Constitution. The Ministers must all be members
of the Executive Council, but the members of the Executive Council need not all be
Ministers ; and thus the Constitution expressly makes the distinction, for which Mr.
Deakin contended, between the merely titular members of the Federal Executive
Council, and the responsible Ministers of the Crown.

One other point deserves mention. In some of the Australian colonies the practice
has grown up of including in the Cabinet one or more " Ministers without portfolios ; '
that is to say, members of the Executive Council who join in the deliberations of the
Ministry, and represent it in one of the Chambers, but who do not administer any
department. This practice is especially resorted to in order to secure the a«lequate
representation of a Ministry in the Upper House ; but it does not appear to be contem-
plated by this Constitution. The heads of the chief departments are to be " the Queen's
Ministers of State "—a phrase which appears to mean not onlj' that these oflScers are
to be Ministers of the Queen, but that they are to be the Ministers of the Queen ; in
other words, that all the Ministers of State are to administer departments of State.

§ 279. " Ministers to sit in Parliament."

The appointment of a Federal Ministi-y will necessarily precede the election of the
first Federal Parliament. There must be a Ministry to assist and advise the Governor-
General in the performance of Executive Acts essential for the conduct of the first
general election. The first Federal Ministry cannot at their appointment be members of
the Federal Parliament, because at the time of their appointment there is no such
Parliament in existence. After the first general election, however, no Federal Minister
is permitted to hold office for a longer period than three months, unless he is or becomes
a senator or a member of the House of Repi-esentatives.

Section 32 of the Constitution Act of South Australia (4th January, 1856) contained
a similar provision, \'iz., that after the first general election of the South Australian
Parliament, no person should hold the offices of Chief Secretary-, Attorney-General,
Treasiu^r, Commissioner of Crown Lands and Immigration, or Commissioner of Public
Works, for more than three calendar months, unless he should be a member of the
Legislative Council or House of Assembly. The Constitution Act of Victoria (consolidated
10th July, 1890), sec. 13, provides that there may be ten Responsible Ministers of the
Crown, of whom not less than four shall be members of the Legislative Council or
Legislative Assembly, and not more than eight shall be members of the Assembly. The
O>nstitution Act of Western Australia contains somewhat similar provisions.

712 COMMENTARIES ON THE CONSTITUTION. [Sec. 65.

Number of Ministers.

65. Until the Parliament otherwise provides, the
Ministers of State shall not exceed seven in number, and
shall hold such offices as the Parliament prescribes, or, in the
absence of provision, as the Governor-General directs.

Historical Note. — In the Bill of 1891, and in the Adelaide draft of 1897, this
clause occurred with merely verbal variations. (Conv. Deb., Adel., ■ — . 916.)

At the Sydney session, in 1897, an amendment of the Legislative Council of Victoria,
that two Ministers at least should be senators, was negatived on division by 19 votes to
13. (For a similar proposal in 1891, see Historical Note, sec. 64.) Mr. Dobson then
moved that if there w"ere five Ministers, one should be a senator, and if there were seven,
two should be senators. This was negatived by 20 votes to 12. (Conv. Deb., Syd.,
1897, pp. 799-806.)

At Melbourne, drafting amendments were made before the first report, and after
the fourth report.

Salaries of Ministers.

66. There shall be payable to the Queen, out of the
Consolidated Revenue Fund of the Commonwealth, for the
salaries of the Ministers of State, an annual sum which, until
the Parliament otherwise provides, shall not exceed twelve
thousand pounds a year.

Historical Note. — As originally drafted in 1891, the clause ran : — " There shall be
payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for
salaries of such officers, a sum not less than fifteen thousand pounds per annum." In
Committee, at the suggestion of Mr. Adye Douglas, it was amended on the motion of Sir
Samuel Griffith by fixing the amount at £15,000 " until other provision is made by the
Parliament." (Conv. Deb., Syd., 1891, pp. 776-7.)

At Adelaide, the clause was introduced and passed in substantially the same form,
with the substitution of £12,000 for £15,000.

At Sydney, the words were altered to " a sum not exceeding £12,000." A suggestion
of the Legislative Council of Tasmania, to reduce the amount to £10,000, was negatived.
(Conv. Deb., Syd., 1897, p. 806.)

At Melbourne, a drafting amendment was made before the first report.

Appointment of civil servants'*^".

67. Until the Parliament otherwise provides, the
appointment and removal of all other officers of the Executive
Government of the Commonwealth shall be vested in the
Governor-General in Council, unless the appointment is
delegated by the Governor-General in Council or by a law of
the Commonwealth to some other authority.

Historical Note.— Clause 7 of chap. II. in the Bill of 1891 was substantially
similar. At Adelaide the clause was first framed as follows : — " Until the Parliament

§§280-281.] THE EXECUTIVE GOVERNMENT. 713

otherwise provides, the appointment and removal of all other officers of the Government
of the Commonwealth shall be vested in the Governor-G^eneral in Council. " In Committee,
Air. Wise, with a view to preventing the introduction of the "spoils" system, moved to
add — " Provided that no such officer shall be removed except for cause assigned." This
was negatived by 28 votes to 8. (Conv. Deb., AdeL, pp. 916-20.)

At Sydney the following words were added as a drafting amendment : — " except
officers or persons whose appointments may be delegated by the Governor-General in
Council or by a law of the Commonwealth to some other officer or person." At
Melbourne further drafting amendments were made before the first report.

§ 280. " Appointment of Civil SerYants."

The appointment and removal of all Federal officers, other than the Queen's
Ministers of State, is vested in the Governor-General in CounciL Pending the adoption
of Federal laws regulating such appointments and removals the Governor-General in
Council is empowered to delegate the making of appointments to some subordinate
Federal authority, such as a Board or a commission. It does not seem that the Governor-
General in Council can delegate to such a body the duty of deciding upon the removal
of officers ; though of course the Federal Parliament can do so.

This section must be read in conjunction with sec. 84, which provides that when any
department of the public service of a State is transferred to the Commonwealth, all
officers of the department whose services are retained become subject to the control of
the Executive Government of the Commonwealth, but preserve all their existing and
accruing rights.

Command of the naval and military forces.

68. The command in chieP^^ of the naval and military
forces of the Commonwealth is vested in the Governor-
General as the Queen's representative.

Canada. — The Command-in-Chief of the Land and Naval Militia, and of all Naval and
Militarj- Forces, of and in Canada, is hereby declared to continue and be vested in the
Queen."— B.N.A. Act, 1867, sec. 15.

Historical Note. — Clause 9 of Chap. II. of the Bill of 1891 was in almost identical
words, as was also the clause adopted at Adelaide. Compare Volunteer Act, 1867
(X.S.W.), sec. 4.

At Melbourne, Dr. Cockbum (for Mr. Deakin) moved to substitute " acting under
the ad\'ice of the Executive Council" for "as the Queen's Representative." A debate
upon the exercise of prerogative powers fo Uowed, and the amendment was negatived.
(Conv. Deb., Melb., pp. 2249-64.) Drafting amendments were made before the first
report and after the fourth report.

§ 281. "The Command-in-Chief."

The command-in-chief of the naval and military forces of the Commonwealth is, in
accordance with constitutional usage, vested in the Governor-General as the Queen's
Representative. This is one of the oldest and most honoured prerogatives of the Crown,
but it is now exercised in a constitutional manner. The Governor-General could not
Avield more authority in the naval and military business of the coimtry than he could in
the routine work of any other local department. Of what use would be the command
without the grant of the supplies necessary for its execution ? All matters, therefore,
relating to the disposition and management of the federal forces will be regulated by the
Governor-General with the advice of his Ministry having the confidence of Parliament.
(Todd's Pari. Gov. in Col. 2nd ed. p. 377.)

714 COMMENTARIES ON THE CONSTITUTION. [See. 69.

The Governor of a colony, though bearing the title of Commander-in-Chief, is not
invested with the command of Her Majesty's regular forces in the colony without special
appointment. He is not entitled to take the immediate direction of military operations,
or, except in cases of urgent necessity, to communicate officially with subordinate
military officers. ( Revised Regulations, Colonial Office List, 1892, p. 301.)

Transfer of certain departments.

69. On a date or dates to be proclaimed by the Governor-
General after the establishment of the Commonwealth, the
following departments of the public service in each State shall
become transferred^®'^ to the Commonwealth : —

Posts, telegraphs, and telephones :

Naval and military defence :

Lighthouses, lightships, beacons, and buoys :

Quarantine.
But the departments of customs and of excise in each
State shall become transferred to the Commonwealth on its
establishment.

Historical Note. — The clause as passed in 1891 was : —

" The control of the following Departments of the Public Service shall be at once
assigned to and assumed and taken over by the Executive Government of the Common-
wealth, and the Commonwealth shall assume the obligations of any State or States with
respect to such matters, that is to say — Customs and Excise, Posts and Telegraphs,
Military and Naval Defence, Ocean Beacons and Buoys, and Ocean Lighthouses and
Lightships, Quarantine." (Chap. II. sec. 10.)

In Committee, Mr. Wrixon asked whether sub-departments attached to the Customs
department (e.g., Immigration Office, or Mercantile Marine Office) would be included.
Sir Samuel Griffith was clear that they would not. Mr. Baker raised the question
whether telephones would be included in " Posts and Telegraphs." Mr. Douglas thoughi
that the Customs and Excise Department was the only one which need be taken over at
once. He moved to omit " Posts and Telegraphs," and also " Ocean Beacons," &c. ; but
this was negatived. (Conv. Deb., Syd., 1891, pp. 778-9.)

At the Adelaide session the clause was introduced in substantially the same words.
In Committee Mr. Higgins raised the question whether " obligations " included public
debts. Mr. Barton thought that only current obligations were meant. Mr. Walker
moved to add " railways," but after a short debate this was negatived by 18 votes to 12.
(Conv. Deb., Adel., pp. 920-34.) Verbal amendments were made on reconsideration.
{Id. pp. 1201-2.)

At Melbourne, a suggestion of the Legislative Assembly of New South Wales, to
provide for the transfer *' as soon as possible after" the establishment of the Common-
wealth, was negatived, and a suggestion of the Legislative Council of New South Wales,
to provide for the transfer on " a date to be proclaimed by the Governor-General after "
the establishment, was adopted. On Mr. Barton's motion, the words "Executive
Government of the " were omitted. Sir John Forrest suggested that the internal posts
and telegraphs of each State should be retained, as the existing postal union was
sufficient. On Dr. Quick's motion, "telephones" were added. (Conv. Deb., Melb., pp.
262-5. ) Drafting amendments were made after the first report and before the fourth
report.

§282.]

THE EXECUTIVE GOVERXMENI.

715

§ 282. "Departments . . Transferred."

By the operation of the Constitution, and without the necessity of anj' other formal
act, the departments of Customs and Excise in each State will become transferred to the
Commonwealth simultaneoush' with the establishment of the Commonwealth, on Ist
January, 1901, the day named in the Queen's proclamation (clause 4). The other
departments of the Public Service in each State enumerated in this section will become
transferred to the Commonwealth on the date or dates to be proclaimed by theGovemor-
Oreneral.

In addition to the departments mentioned in this section, which will become
transferred without the necessity- of federal legislation, there are other departments
which will come under the control of the Commonwealth whenever the Federal
Parliament chooses to authorize their transfer ; such as Astronomical and Meteorological
Observations (51. — viii.) ; Census and Statistics (51. — xi. ) ; Currency and Coinage (51. —
xii.) ; Bankruptcy and Insolvency (51. — xviL) ; Copj-rights, Patents, and Trade Marks
(51. — xviii).

Revente axd Expexditcke. — One result of the transfer of a department will be
that the State from which it is transferred will be relieved of the annual expenditure in
respect of the department and the property used in connection therewith, and will be
compensated for the value of such property. Another result will be that the State will
be deprived of the revenue received in connection with the department.

The following table, based on a return presented to the Convention at the Melbourne
session (Conv. Proceedings, Melb., p. 231) shows: — (1) the annual expenditure of which
each State will be relieved in respect of the above mentioned services, together with
interest at 3 per cent, on the value of property used in connection therewith ; (2) the
annual revenue of which each State will be deprived in connection with such services
(apart from the taxation revenue from duties of Customs and Excise). The figures are
those of 1896 or 1895-6 :—

I. ANNUAL EXPENDITURE.

Department.

Victoria.

New Soath
Wales.

i^eens-
Und.

Sonth
Australia.

Western
Australia.

Total

£ £

1. Customs and Ex-

75,588

78,608

40.915 •28,266

7,888

30,509

261,774

cise (less cost of

border offices)

2. Posts, telegraphs.

559,881

763,550

355,869 247,7-29

62,945

212,728

2,202,702

and telephones

3. Naval and mili-

198,785

214,206

105,480 33,4S9

12,593

10,620

575,173

tary defence

4. Lighthouses,

17,356

16,908

3-2,844

15,018

5,950

12,077

100,153

lightships, bea-

cons and buoj^

5. Quarantine

4,050

5,537

3,496 1,431

165

685

15.364

6. Astronomical .

and J-

4,0.50

5,911

•2,391

253

]S,649

7. Meteorological '

8. Census and Sta-

6,444

11,599

5,-238 1 1,767

1,244

1,800

•28,092

tistics

9. Currency and

•23,395

18,000

41,395

Coinage

10. Bankruptcy and

4,542

3,599

•2,685

•2,241

100

1,248

14.415

Insolvency

11, Copyrights,

2,411

2,981

2,057

393

250

101

8,195

Patents, and

Trade Marks

Total Amounts

896,502

1,120.899

550,975 j 331,283

91,232

•270,021

3,260,912

716

COMMENTARIES ON THE CONSTITUTION. [Sec. 70.

ANNUAL REVENUE,

Department.

Victoria.

New
South
Wales.

Queens-
land.

South
Australia.

Tasmania.

Western
Australia.

Total.

2. Post, telegraphs,
and telephones

4. Lighthouses, light-
ships, beacons and
buoys (estimated
apportionment)

9. Currency and Coin-
age

10. Bankruptcy and
Insolvency

11. Copyrights,
Patents, and Trade
Marks

£
512,647

17,356

40,511
3,767
3,683

£
639,929.

16,908

41,550
5151
3,584

£
211,712

32,844

588
2 547

£
250,061

15,018

7,829

777

1,544

£
72,539

5,950
1,465

£
179,146

12,077

1,099
1,500

£
1,866,034

100,153

89,890
11,382
14,323

Total annual Revenue
(except from Cus-
toms)

577,964

707,122

247,691

275,229

79,954

] 93,822

2,081,782

Net Expenditure

318,538

413,777

303,284

56,054

11,278

76.199

1,179,130

Certain powers of Governors to vest in Governor-General.

70. In respect of matters which, under this Constitution^
pass to the Executive Government of the Commonwealth^^^,
all powers and functions which at the establishment of the
Commonwealth are vested in the Governor of a Colony, or in
the Governor of a Colony with the advice of his Executive
Council, or in any authority of a Colony^^^ shall vest in the
Governor-General, or in the Governor-General in Council,
or in the authority exercising similar powers'^^ under the
Commonwealth, as the case requires.

Canada.— All powers, authorities and functions which under any Act of the Parliament of
Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland,
or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New
Brunswick, are at the Union vested in or exercisable by the respective Governors or
Lieutenant-Governors of those Provinces, with the advice, or with the advice and consent,
of the respective Executive Councils thereof, or in conjunction with those Councils, or
with any number of members thereof, or by those Governors or Lieutenant-Governors
individuall.y, shall, as far as the same continue in existence and capable of being exercised
after the Union in relation to the Government of Canada, be vested in and exercisable l)y
the Governor-General, with the advice, or with the advice and consent of or in conjunction
with the Queen's Privy Council for Canada, or any members thereof, or by the Governor-
General individually, as the case requires, subject nevertheless (except with respect to
such as exist under Acts of the Parliament of Great Britain or of the Parliament of the
United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament
of Canada.— B.N.A. Act, 1867, sec. 12.

Historical Note.— Clau.se 11 of Chap. II. of the Bill of 1891 was drawn from sec.
12 of the British North America Act (supra). (Conv. Deb., Syd., 1891, p. 779.) At the
Adelaide session, 1897, it was introduced and passed in the same form. In Sydney some
drafting amendments were made ; and at Melbourne, before the first report, it was
re-drafted and condensed into its present form.

§§•283-285.] THE EXECUTIVE GOVERNMENT. 717

^ 283. " Matters Which . . Pass to the . . Commonwealth.**

Among the matters which, under this Constitution, pass to the Executive Govern-
ment of the Commonwealth are ( 1 ) from the establishment of the Commonwealth = the
administration of the departments of customs and excise (sec. 69) ; the collection
and control of duties of customs and excise, and the control of the paj-ment of
bounties ; the control of oflBcers and the appointment and removal of officers connected
with those departments (sees. 67, 84, and 86). (2) from and after dates to be proclaimed
subsequently to the establishment of the Commonwealth = the administration of other
departments of the pubUc service of each State, which become transferred to the
Commonwealth, and the control, appointment, and removal of all officers connected
therewith (sees. 69 and 84). In respect of such matters, from the moment when they
are transferred to the Executive Government of the Commonwealth, all powers and
functions which at the establishment of the Commonwealth are vested in the Governor
of a colony vest in the Governor-General of the Commonwealth ; all powers and functions
which are then vested in the Governor of a colony with the adN-ice of his Executive
Council vest in the Governor-General in Council ; and all powers and functions which
are then vested in any authority of a colony vest in the authority exercising similar
powers under the Commonwealth.

§ 284. " Or in any Authority of a Colony."

In connection with the public service of each colony there may be local authorities,
lx)ards or commissions which are endowed with special powers and functions. When a
public department is transferred to the Commonwealth it is placed beyond the jurisdiction
of such local authorities, boards, and commissions, and becomes subject to the exclusive
control of the Federal Executive. In such cases the powers and functions, formerly
exercised in respect to the department by the local authority, vest either in the Governor-
General or in the Governor-General in Council, until Federal legislation creates a
Federal authority to exercise similar powers and functions under the Commonwealth.

§ 285. ''In the Authority Exercising Similar Powers."

Of the administrative powers and functions which, under the Constitution, pass to
the Federal Executive Government, some were previously vested in the Governors of the
Colonies, some in the Governors of the Colonies Avith the advice of their respective
Executive Councils, and some in local authorities within the Colonies appointed by
law. Those described as vested in the Governors belong, technically, to the prerogatives
of the Crown ; those described as vested in the Governors with the ad\-ice of their
respective Executive Councils, are dependent on statute law ; those described as vested
in "any authority of a Colony" were founded on statute and by statute were vested
in Ministers, local boards, bodies, commissions, or officers. Thus in connection with
the department of light-houses, light-ships, beacons, and buoys, certain powers and
functions have been, under the Colonial system, generally assigned to marine boards ;
so in connection with the quarantine department certain powers and functions have
been exercised by Boards of Health. Xow, the intention of this section is that on
the transfer to the Federal Executive Government of matters involving the exercise
of Executive powers and functions, those powers and functions which in the pre-federal
period were, by express terms, vested in the Colonial Governors, shall under the Federal
i-egime and by express terms be vested in the Gk)vemor-General ; that, likewise, those
Executive powers and functions which were vested in the Colonial Governors with the
advice of their respective Executive CouncUs shall, by express terms, be vested in the
Governor-General in Council ; and lastly, that those Executive powers and fimctions
which were formerly vested in local authorities shall be vested in some Federal Authority,
■exercising similar powers under the Commonwealth.

718 COMMENTARIES ON THE CONSTITUTION. [Sec. 70.

The difference between transferred powers and functions vested in the Governor-
General, and transferred powers and functions vested in the Governor General in Council,
is purely an historical one and not one of substance, and all such powers and functions
will be exercised by the Governor-General through Ministers having the confidence of
the Federal Parliament.

The substantive meaning of this section (which is adapted from section 12 of the
British North America Act, quoted above) is that executive functions which were
formerly exercised in relation to the separate colonies, but which are now to be exercised
in relation to the Federal Government, are vested in some Federal officer or authoritj-
corresponding to the provincial officer or authority i^i whom they were formerly vested.

The section is intended to facilitate the proper performance of duties in connection
with transferred departments, before those duties have been regulated by federal law.
After the transfer, the exclusive legislative power in respect of those departments
belongs to the Federal Parliament ; but until the Federal Parliament acts in pursuance
of its exclusive power, the departments will be administered in accordance with the
provisions of this section. It does not appear to interfere in any way with the
discretion of the Federal Parliament to afterwards assign any of these duties to what
officers it pleases. It declares that all these powers and functions " shall vest " in the
corresponding department, officer, or authority, but it does not declare that they shall
continue to be so vested ; and to construe the vesting as permanent would introduce a
conflict with sec. 61, which declares that the executive power of the Commonwealth is
vested in the Queen, and exercisable by the Governor-General as the Queen's
Representative. The whole power is vested in the Queen ; but particular statutory
powers are to " vest in" — i.e., to be exercisable by — certain officers. The power of the
Parliament (sec. 51— xxxix.) to make laws as to matters incidental to the execution of
any power vested in the Governor-General of the Commonwealth, or in any department
or officer of the Commonwealth, does not seem to be affected by this provisional vesting.

The only other point arising out of this section which requires consideration is, how
is " the authority exercising similar powers under the Commonwealth" to be created?
Could the Executive Government of the Commonwealth appoint a marine board to
supervise lighthouses, &c., taken over according to the terms of a proclamation issued
under sec. 90? Could the Executive Government establish a Board of Health to manage
the quarantine department taken over according to a proclamation under the same
section? Would Federal legislation be necessary in order to authorize certain proceed-
ings and operations of those services to be conducted through the agency of Boards? It
is conceived that such legislation would be necessary, and that pending its adoption
those services, if taken over by proclamation only, would have to be managed directly
by responsible Ministers of State. Probably those and other services would not be taken
over by the authority of proclamation alone, but by proclamation accompanied by
Federal laws, making temporary arrangements for preserving, in each State, the
jurisdiction of local authorities until uniform Federal legislation is adopted.

^286.] THE JUDICATURE. 719

CHAPTER III.— THE JUDICATURE.

Judicial I'ower and Courts.

71. The judicial power^ of the Coramonwealth shall be
vested^ in a Federal Supreme Court, to be called the High
Court of Australia^, and in such other federal courts as the
Parliament creates^, and in such other courts as it invests
with federal jurisdiction^. The High Court shall consist of a
Chief Justice, and so many other Justices^\ not less than two,
as the Parliament prescribes.

UnnD States. — The jndicial power of the United States shall be vested in one Supreme Court,
and in such inferior courts as the Congress may from time to time ordain and establish. —
Const., Art. III., sec 1.

Caxada.— The Parliament of Canada may, notwithstanding anything in this Act, from time to
time provide for the constitution, maintenance, and organization of a General Coart of
Ap(>«U for Canada, and for the establishment of any additional Courts for the better
administration of the laws of Canada. — B.X.A. Act., sec 101.

Historical Note. — The idea of a federal Supreme Court is as old as the report of
Earl Grey's Committee in 1849 (see pp. 83-85, supra). In the Bill of 1891 the Court
■was called the " Supreme Court of Australia." Instead of being established by the
Constitution, it was left for the Parliament to establish, and the minimum of Justices
in addition to the Chief Justice, was fixed at four. — Conv. Deb., Syd. (1891), pp. 779-85.

At the Adelaide Session the clause was drafted in its present form, but with a
minimum of four Justices. An amendment by Mr. Carrutbers to sti-ike out the minimum
was negatived.— Conv. Deb., AdeL, pp. 935-43.

At the Melbourne Session a suggestion by the Legislative Council of Tasmania, to
insert at the beginning "Until the Parliament otherwise provides," was negatived;
also an amendment by Mr. Glynn that the Court should consist of " a Chief Justice,
and until the Parliament otherwise provides, the Chief Justices of the States." A sug-
gestion by the Legislative Assemblies of Xew South Wales and Victoria and the
Legislative Coimcil of Tasmania, to strike out the minimum, was negatived, and the
minimum was altered to "two." An amendment by ilr. Holder to insert a maximum
was negatived on division, by 26 to 14. (Conv. Deb., Melb., pp. 265-308.) Drafting
amendments were made after the 4th Report.

§ 286. "The Judicial Power.**

Sep.vbation o» Powers. — The judicial power is the power appropriate to the third
great department of government, and is distinct from both the legislative and the
executive powers. The judicial function is that of hearing and determining questions
which arise as to the interpretation of the law, and its application to particular cases.
*' The distinction l^tween the departments undoubtedly is, that the legislature makes,
the executive execute.s, and the judiciary construes, the law." Per Marshall, C.J.
(U.S.), Wayman r. Southard. 10 Wheat. 46; Cooley's Constitutional Limitations (5th
Ed.) 109.

720 COMMENTARIES ON THE CONSTITUTION. [Sec. 71.

But though the distinction between the three departments is broad and fundamental,
it is difficult to define their powers exactly. Judicial acts have, of necessity, points of
contact with both executive and legislative acts. In Great Britain, owing to the
supremacy of the legislative power, the distinction has not been the subject of decision
in the Courts, though it is recognised by commentators. See Wharton's Judicial
Dictionary, sub. tit. Judges.

In this Constitution, however, each power is vested in distinct organs, and it
becomes important to define the principles on which the distinction is based. A similar
separation of functions is prescribed in the Constitution of the United States, as well as
in the Constitutions of the States of the Union ; and also, though to a less degree, in
the Constitution of the Canadian Dominion. American and Canadian decisions are
therefore important, but with some reservation in each case. The Constitution of the
United States goes somewhat farther in the separation of powers than this Constitution,
because it not only vests them in distinct organs, but contains certain specific limita-
tions, such as the prohibition on Congress and the State legislatures to pass any bill of
attainder or ex post facto law, and the prohibition on the State legislatures to pass laws
impairing the obligation of contracts. (Art. I., sees. 9, 10.) On the other hand, the
British North America Act does not go nearly as far ; it does not expressly mention the
*' judicial power," and it does not establish a federal judiciary as a co-ordinate depart-
ment, but merely empowers the Dominion Parliament to establish Courts. See Lefroy,
Legislative Power in Canada, p. Ivi. Accordingly the tendency of Canadian decisions
seems to be that legislation on a subject within the competence of the Dominion Parlia-
ment cannot be held to be invalid on the ground that it invades judicial functions. {Id.,
pp. 124, 279).

This Constitution vests the legislative, executive and judicial powers respectively
in distinct organs ; and, though no specific definition of these powers is attempted, it is
conceived that the distinction is peremptory, and that any clear invasion of judicial
functions by the executive or by the legislature, or any allotment to the judiciary of
executive or legislative functions, would be equally unconstitutional. Thus it has been
held in the United States that "neither the legislative nor the executive branches of
the government can constitutionallj^ assign to the judiciary any duties but such as are
properly judicial, and to be performed in a judicial manner. Nor can the executive or
legislative departments review or sit as a court of errors on the judicial acts or opinions
of the courts of the United States." (Baker's Annot. Const, of the U.S., p. 121.)
"Executive power is so intimately connected with legislative, that it is not easy
to draw a line of separation ; but the grant of the judicial power to the department
created for the purpose of exercising it must be regarded as an exclusive grant, cover-
ing the whole power, subject only to the limitations which the constitutions impose,
and to the incidental exceptions before referred to" [i.e., cases where the exercise of
judicial functions by the legislature is warranted by parliamentary usage, and incidental,
necessary, or proper to the exercise of legislative authority].— Cooley, Constit. Lim.,
p. 106.

Executive Encroachments. —The distinction between judicial and executive
functions is not always easy to draw. "Doubtless the non-coercive part of executive

business has no affinity with judicial business The same may be said, for

the most part, of such coercive work of the executive as consists in carrying out decisions
of judges; e.g., the imprisonment or execution of a convict. But there are other
indispensable kinds of coercive interference which have to be performed before or apart
from any decisions arrived at by the judicial organ ; and in this region the distinction
between executive and judicial functions is liable to be evanescent or ambiguous,
since executive officials have to ' interpret the law ' in the first instance, and they ought
to interpret it with as much judicial impartiality as possible." (Sidgwick, Elements of
Politics, p. 358). There may sometimes be a difficulty in deciding whether a particular

§286.]

THE JUDICATURE. 721

act is ministerial or judicial. "Perhaps we may say that in sach cases, where the
official has a discretionary power to act or not to act, according to considerations of
expediency, the function is properly regarded as executive." [Id., p. 359.) There are,
however, some undoubtedly judicial powers into the exercise of which considerations
of expediency may enter ; for instance, the power to determine the punishment to be
awarded to a convicted criminal.

Legislattvb Encroachments. — Nor is there a hard and fast line between judicial
and legislative acts. A law which is retrospective, or which declares or modifies existing
rights, may often have the effect of a judicial decision. But although the application
of the principle to particular facts may sometimes be difficult, the principle itself is
clear. " It is said that that which distinguishes a judicial from a legislative act is,
that the one is a determination of what the existing law is in relation to some existing
thing already done or happened, while the other is a predetermination of what the law
shall be for the regulation of all future cases falling under its pro\-isions." (Cooley,
Const. Limitations, p. 91.) " The legislative power extends only to the making of laws,
and in its exercise it is limited and restrained by the paramoxmt authority of the federal
and State constitutions. It cannot directly reach the property or vested rights of the
citizen by providing for their forfeiture or transfer to another, without trial and judg-
ment in the courts ; for to do so would be the exercise of a power which belongs to
another branch of the government, and is forbidden to the legislative." (Newljind r.
Marsh, 19 Illinois, 383; Coole\-, Const. Lim., p. 91.) " That is not legislation which
adjudicates in a particular case, prescribes the rule contrary to the geneial law, and
orders it to be enforced." (Er^nne's Appeal, 16 Penn. St. 266 ; Cooley, Const. Lim., p.
91.) " It is the province ot judicial power to decide private disputes between or con-
cerning persons ; but of legislative power to regulate public concerns, and to make laws
for the benefit and welfare of the State. Nor does the passage of private statutes con-
flict with these principles ; because such statutes, when lan-ful, are enacted on petition,
or by the consent of all concerned ; or else they forbear to interfere with past transac-
tions and vested rights." — Merrill v. Sherburne, 1 N. Hamp. 203 ; cited Cooley, Const.
Lim., p. 92.

Great care must, however, be taken in applying American decisions as to the
validity or invalidity of declaratory or retrospective legislation. Those decisions are
I)ased, not only upon the invasion of judicial power, but also upon certain specific
limitations contained in the Federal and State Constitutions — such, for instance, as the
prohibition against depriving any person of life, liberty, or property, without due
process of law (Amendment V.), and the prohibition against laws impairing the obb'gation
of contracts (Art. I., sec. x. 1.). These limitations are the foundation of the rule
that "vested rights must not be disturbed" (Cooley, Const. Lim., p. 357.) The
length to which these principles are carried in the United States is forcibly stated by
Lefroy, Legis. Power in Canada, pp. xlvi.-lx. The practical result is that retrospective
or declaratory acts have usually been held void, apart altogether from the question of
invasion of the judicial power, so far as they disturbed vested rights. For the definition
and extent of this principle, see Cooley, Const. Lim., Ch. XL, on "The Protection to
Property by ' The Law of the Land.' " Under this Constitution, however, the principle
would seem to have no application : for, although the protection to every man's life,
liberty, or property, except as forfeited by the judgment of his peers, or the law of the
land, is guaranteed b^- section 39 of Magna Charta, no constitutional limitation is
thereby imposed on the plenary power of a colonial legislature. The propriety of any
interference with these rights is a matter of legislative policy and morality, not of
constitutional law. It is conceived that the following proposition stated by Lefroy
(Legis. Power in Canada, p. 279) is applicable : —

'* When once an Act is passed by the Dominion Parliament, or by a provincial legis-
lature, in respect to any matter over which it has jurisdiction to legislate, it is not

-22 COMMENTARIES ON THE CONSTITUTION. [Sec. 71.

competent for any Court to pronounce the Act invalid because it may affect injuriously
private rights, any more than it would be competent for the Courts in England, for the
like reason, to i-efuse to give effect to a like Act of the Parliament of the United
Kingdom. If the subject be within the legislative jurisdiction of the Parliament, or of
the Provincial Legislatures, respectively, and the terms of the Act be explicit, so long as
it remains in force, effect must be given to it in all Courts of the Dominion, however
private rights may be affected. "

Apart, however, from questions of vested rights, there remains the principle that
" to declare what the law is, or has been, is a judicial power ; to declare what the law
sAaZ^ 6e is legislative." (Cooley, Const. Lim., p. 94.) It cannot be doubted that any
attempt by the Parliament, under cover of a declaratory law or otherwise, to set aside
or reverse the judgment of a court of federal jurisdiction, would be void as an invasion
of the judicial power.

But what is the application of this principle to a case where the Courts ha^e
interpreted the law in one way, and the legislature afterwards, by a declaratory enact-
ment, has laid down a different interpretation? In such a case, the Court, in the
exercise of its function as interpreter, has declared what it believes to be the law ; and
the legislature has in effect declared the judicial interpretation to be unfounded and
unwarrantable. Under these circumstances Cooley, Const. Lim., p. 94, offers the
following test of the constitutionality of the law : —

" The decision of this question must depend, perhaps, upon the purpose which was
in the mind of the legislature in passing the declaratory statute ; whether the design
was to give to the rule now declared a retrospective operation, or, on the other hand,
merely to establish a construction of the doubtful law for the determination of cases
that may arise in the future. It is always competent to change an existing law by a
declaratory statute ; and where the statute is onl}' to operate upon future cases, it is no
objection to its validity that it assumes the law to have been in the past what it is now
declared that it shall be in the future. But the legislative action cannot be made to
retroact upon past controversies, and to reverse decisions which the courts, in the
exercise of their undoubted authority, have made ; for this would not only be the exercise
of judicial power, but it would be its exercise in the most objectionable and offensive
form, since the legislature would in effect sit as a court of review to which parties
might appeal when dissatisfied with the rulings of the courts."

It is submitted that the true test is indicated in the latter part of the above quota-
tion ; but that there is no need to refer to anything so vague as the "purpose" or
'* design " of the legislature. The simple rule would seem to be that, just as the
legislature cannot directly reverse the judgment of the court, so it cannot, by a
declaratory law, affect the rights of the parties in whose case the judgment was given.
A declaratory law must always be in a sense retrospective, and will not be unconstitu-
tional because it alters existing rights ; but it will be unconstitutional, and therefore
inoperative, so far as it pui-ports to apply to the parties or the subject-matter of
particular suits in which judgment has been given. That is to say, the legislature may
overrule a decision, though it may not reverse it ; it may declare the rule of law to be
different from what the courts have adjudged it to be, and may give a retrospective
operation to its declaration, except so far as the lights of parties to a judicial decision
are concerned. In other words, the sound rule of legislation, that the fruits of victory
ought not to be snatched from a successful litigant, is elevated into a' constitutional
requirement ; but the general question of retrospective legislation is left to the dis-
cretion of the legislature.

Political Questions. — On the other hand, the courts cannot be clothed with
legislative or executive powers, or decide questions which in their nature are not
judicial, but political. Thus it has been held in the United States that the question
whether the constitution of a State has been properly ratified is a political question,
and is not cognizable by the federal courts. (Luther v. Borden, 7 How. 1.) On the same
grounds the courts of the United States have refused to interfere with the exercise of
political disci'etion by the executive department. For instance, when a bill was broucrht

§5 286-287.1 THE JUDICATURE. 723

by the State of Georgia against the Secretary of War of the United States to restrain
him from carrying into execution certain Acts of Congress, on the ground that their
execution would overthrow and destroy the corporate existence of the State, the
Supreme Court refused to take cognizance of the matter, as it called for the judgment
of the court on political questions which did not involve personal or property rights.
(Georgia i*. Stanton, 6 Wall. 50.) Again, in Mississippi v. Johnson, 4 Wall. 500, the
Supreme Court refused to entertain a bill brought to restrain the President from carry-
ing into execution a law alleged to be unconstitutional. " It can hardly be contended
that Congress [sic ; but query, " the Court"] can interpose, in any case, to restrain the
enactment of an unconstitutional law ; and yet how can the right to judicial interposition
to prevent such an enactment, when the purpose is evident and the execution of that
purpose certain, be distingiiished in principle from the right to such interposition
against the execution of such law by the President ? The Congress is the legislative
department of the Government ; the President is the executive department. Neither
can be restrained in its action by the judicial department, though the acts of both,
when performed, are, in proper cases, subject to its cognizance."

It has also been held in the United States that the political department has exclu-
sive authority to recognize, or not to recognize, a new Government in a foreign country ;
and therefore that this is not a matter for judicial cognizance ; Kennett v. Chambers,
14 How. 38.

The distinction between the judicial and political powers has receive<l recognition
by English Courts. Thus it has been decided that political treaties between a foreign
State and a subject of the Crown acting as an independent State under powers granted
by Charter are not subject to municipal jurisdiction, and a bill founded on such treaties
was dismissed. (Nabob of Camatica r. East India Company, 1 Ves. Jim, 375-393, '2 ib.
56-60.)

Legislation' Incident.al to Judicial Power. — Sec. 51, subs, xxxix., gives the
Parliament power to make laws with respect to " matters incidental to the execution of
any power vested by this Constitution in . . the Federal Judicature." Under this
power the Parliament can legislate with respect to the practice and procedure of the
Courts, the conduct of appeals, the admission and status of legal practitioners in the
courts of federal jurisdiction, and so forth.

§ 287. '« Shall be Vested.**

Mandatory Words — These words are imperative, at least so far as the High
Court is concerned ; and are mandatory on the Parliament to carry the vesting into
eflFect by prescribing the number of Justices of which the Court is to consist, to fix their
salaries, and to make provision for their appointment. Under the same words in the
United States Constitution there was at one time much discussion whether Congress
possessed anj- discretion as to creating a Supreme Court or investing it with jurisdiction
— a discretion which would allow Congress to practically annihilate the judiciary as a
co-ordinate department. It has been decided, however, that no such discretion exists.
(Story, Comm. § 1590.)

" The language of the [third] article throughout is manifestly designed to be man-
datory upon the legislature Its obligatory force is so imperative, that Congress could
not, without a violation of its duty, have refused to carry it into operation. The
judicial power of the United States shall be vested (not may be vested) in one Supreme
Com-t, and in such inferior courts as Congress may from time to time ordain and
establish. Could Congress have lawfully refused to create a Supreme Court, or to vest
in it the constitutional jurisdiction? .... But one answer can be given to these
questions ; it must be in the negative." (Martin v. Hunter, 1 Wheat, at p. 328.)

In one sense, it may be said that the judiciary is not exactly a co-ordinate depart-
ment with the legislature, because before it can come into existence certain action mast
be taken by the legislature. The same reasoning, however, would show that the

724 COMMENTARIES ON THE CONSTITUTION. rSec. 7i.

legislature is not a co-ordinate department with the executive, because before it can
come into existence certain action must be taken by the executive. The Judiciary may
be fairly called co-ordinate with the legislature, though not absolutely independent of it.
The position is concisely expressed by Dr. Burgess, with reference to the United States
Constitution : —

"Apparently the Supreme Court is here created by the Constitution, while the
inferior Courts depend for their existence on the will of the Legislature. When we come
to consider the subject more closely, however, we find that the existence of the Supreme
Court itself virtually depends upon the will of the Legislature. The Legislature, in the
absence of constitutional provisions, must determine the number of the Judgeships
which the Supreme Court shall contain, ci-eate the same, and fix the salaries of the
judges. It might be thought that, these things once done, the Court would then have
a constitutional anchor against the Legislature, since the Constitution provides the term
of good behaviour for the judges, and forbids the diminution of the salary of any judge
during his continuance in office. But it must be again remembered that at the end of
any term, concluded by the death, resignation, or impeachment of any judge, the
Legislature may modify or abolish that particular judgeship for the future. It is thus
possible for the Legislature virtually to disestablish the Supreme Court at the conclusion
of the terms of the judges who may be holding at the time the Legislature may adopt
this destructive policy. A sound view of the Constitution would, I think, interpret the
constitutional provision in reference to the creation of the judicial department as a com-
mand to the Legislature to organize the Supreme Court in such force, and inferior courts
in such number and force, as to provide for the transaction of the judicial business of
the central government ; but the Legislature alone is the authoritative interpreter of
the Constitution upon this subject, and the Legislature is here subject to control by the
State only. [By "the State" Dr. Burgess means in effect the political organization
which has the power of amending the Constitution.] The constituencies may influence
the legislators, but the sovereignty alone [i.e., the amending power] can command the
Legislature. It will thus be seen that the judicial department, even in the Constitution
of the United States, does not really have an equally independent existence with the
legislative and executive departments. In order to accomplish this, the Constitution
must establish all the courts and all the judgeships thereof, and create means for the
selection of the judges without action by the other departments." (Burgess, Pol. Science,
ii. 321.)

" In this respect it is mandatory upon the Legislature to establish Courts of justice
commensurate with the judicial power of the union. Congress have no discretion in
the case. Tiiey were bound to vest the whole judicial power, in an original or appellate
form, in the courts mentioned and contemplated in the Constitution, and to provide
courts inferior to the Supreme Court, in which the judicial power, unabsorbed by the
Supreme Court, might be placed. The judicial power of the United States is, in point
of origin and title, equal with the other powers of the government, and is as exclusively
vested in the courts created by or in pursuance of the Constitution, as the legislative
power is vested in Congress, or the executive power in the President." (Kent, Comm.
i. 292.)

§ 288. " The High Court of Australia."

The High Court is the crown and apex, not only of the judicial system of the

Commonwealth, but of the judicial systems of the States as well. It is in the first

I place a court of original jurisdiction in certain enumerated matters of specially federal

concern (sec. 75), and this jurisdiction may be extended by federal legislation to cover

certain other enumerated matters of specially federal concern (sec. 76). In the next

^ place, it is a court of appeal from federal courts and courts exercising federal jurisdiction

(sec. 73) ; and this appellate power is of course confined within the same limits as the

original jurisdiction in respect of which it exists — that is to say, within the matters

i enumerated in sees. 75 and 76. But in the third place, the High Court is a court of

*3 appeal from all decisions of the Supreme Courts of the States, utterly irrespective of
the subject-matter of the suit or the character of the parties. In this respect it re-
sembles the Supreme Court of Canada, and difiFers from the Supreme Court of the
United States. In the United States there is only an appeal to the Federal Supreme
Court in those enumerated oases to which the " judicial power " is expressed to extend.
In all cases which do not come within one or other of the enumerated classes, the

§§ 288-289.] THE JUDICATURE. 725

decision of the last court of resort in each State is final. That is because, in the con-
struction of the federal judiciary of the United States, strictly federal principles were
adhered to, and the union was given no more power of iBterfering with the administra-
tion of justice in the States than was necessary for national purposes. But in Australia,
as in Canada, the appellate jurisdiction is not one of those jealously-guarded State
rights which make anything more intimate than a federal union impossible. We are
accustomed to a common court of appeal in the shape of the Privy Council : we are so
assured of the independence and integrity of the Bench that the advantages of having
one uniform Australian tribunal of final resoi-t outweigh all feelings of localism, and the
federal tribunal has been entrusted (subject to the rights reserved with respect to the
Privy Council) with the final decision of all cases, whether federal or purely local in
their nature.

Thus, notwithstanding the difierences of laws which may exist in the diflFerent
States, and the independence of their several judicial systems, there is established a
complete unity of interpretaiion throughout Australia. This is not the case in the
United States, where the federal Supreme Court has only a limited appellate jurisdic-
tion, and where, outside the limited " judicial power," there are as many final courts of
appeal as there are States in the Union. " Where the laws of the United States are in
question, uniformity is assured by the appellate jurisdiction conferred upon the Supreme
Court of the United States, but there is no such conunon appellate tribunal in the case
of questions of State law." Story, Comm. § 1795, n. The American State Courts are the
final interpreters of State laws, except so far as they may conflict with federal laws ;
and accordingly in cases which are governed by State law, but in which the federal
courts get jurisdiction owing to the character of the parties, the federal courts do not
claim any right of " independent interpretation " of the law, but follow the decisions of
the State courts. In other words, they adopt the principle that the interpretation of
the law of a State by its own cotirts is of itself part of the law of the State. (See
Burgess, ii., 328.) Under this Constitution no such distinction arises. The High .
Court has a right of " independent interpretation " in every case that comes before it. '
In its juiisdiction as "general court of appeal from the courts of the States," it is not
and cannot be bound to follow the decisions of those courts in any degree whatever.

Guardian- of thk Constitittions. — The High Court, like the Supreme Court of
the United States, is the "guardian of the Federal Constitution;" that is to say, it
has the duty of interpreting the Constitution, in cases which come before it, and of
preventing its violation. But the High Court is also — unlike the Supreme Court of the
United States — the guardian of the Constitutions of the several States ; it is as much
concerned to prevent encroachments by the Federal Government upon the domain of"^
the States as to prevent encroachments by the State Governments upon the domain of
the Federal Government. (See Notes on " Interpretation," § 330, injra.)

§ 289. " Such Other Federal Courts as the Parliament

Creates."

These words impliedly give the Federal Parliament a power to create other federal
courts besides the High Court. The words, however, are not mandatory, as in the case
of the High Court ; they leave it to the Parliament to decide whether any other federal
courts are necessary.

In the United States, Congress has established federal Circuit Courts and District
Cotirts, which have been steadily growing in number. There are now about 60 districts
— «ach State consisting of one or more districts — and nine circuits. The Constitution
of the United States has been interpreted as denying to the Supreme Court any
original jurisdiction in those cases in which appellate jurisdiction was given to it ; and
Story reasons from this that Congress was bound to create some inferior tribunals in
order to vest the whole judicial power : —

726 COMMENTARIES ON THE CONSTITUTION. [Sec. 71.

" Congress cannot vest any portion of judicial power of the United States, except
in Courts ordained and established by itself ; and if, in any of the cases enumerated in
the Constitution, the State courts did not then possess jurisdiction, the appellate
jurisdiction of the Supreme Court . . could not reach those cases ; and conse-

quently, the injunction of the Constitution that the judicial power ' sJmII he vested '
would be disobeyed. It would seem, therefore, to follow that Congress are bound to
create some inferior courts, in which to vest all that jurisdiction which, under the
Constitution, is exclusively vested in the United States, and of which the Supreme
Court cannot take original cognizance." (Story. Comm., § 1593.)

This reasoning does not apply to the Constitution of the Commonwealth. In the
first place, the Federal Parliament has power to extend the original jurisdiction of the
High Court to any case to which original cognizance under the judicial power of the
Commonwealth can extend. And in the second place, the Parliament is expressly
empowered to "invest any court of a State with federal jurisdiction." With these
provisions, it is probable that for some time there will be no necessity for the creation
of any inferior federal courts, but that all the cases in which the original jurisdiction of
the Commonwealth is invoked can be dealt with either by the High Court itself or by
Courts of the States.

Under sec. 72, the Justices of federal courts created by the Parliament must be
appointed in the same way, and for the same tenure, as Justices of the High Court.

Under sec. 73, the High Court has jurisdiction, "with such exceptions and subject
to such regulations as the Parliament prescribes," to hear and determine appeals from
any federal court. It may be noted that the power of " exception and regulation " in
this case is not subject to the limitation imposed by sec. 73 with regard to appeals from
the Supreme Court of a State, so that the right of appeal from .the other federal courts
to the High Court is, in the words of Burgess (ii., 331) " very nearly at the mercy of the
legislature."

Under sec. 77, the Federal Parliament may make laws defining the jurisdiction of
these federal courts, and defining the extent to ^^ hich that jurisdiction is exclusive of
that of the State Courts. The jurisdiction of these federal courts is thus— unlike that
of the High Court — wholly dependent on the gift of the Parliament. This jurisdiction
can only be given " with respect to anj'^ of the matters mentioned in" sees. 75 and 76 —
the sections w^hich enumerate the "matters" in respect of which the High Court has,
or may have conferred upon it, original jurisdiction. It is not expressly stated in sec. 77
that the jurisdiction in respect of these matters which may be conferred upon the
"other federal courts" is original jurisdiction only. (See notes, § 334, infra.)

In the American Constitution, the courts which Congress may create are styled
" inferior courts. " It has been held, however, that the Circuit Courts of the United
States, though " inferior" in the sense of being subordinate to the Supreme Court, are
not " inferior courts ' in the common law sense — i.e., "courts of specific and limited
jurisdiction, which are erected on such principles that their judgments when taken alone
are entirely disregarded, and the proceedings must show their jurisdiction." (Per
Marshall, C.J., Kempe's Lessee v. Kennedy, 5 Cranch 185; and see McCormick v.
Sullivant, 10 Wheat. 199.) In other words, the circuit courts are courts of limited, but
not of inferior, jurisdiction ; and their judgments, if without jurisdiction, cannot be
treated as nullities, but are valid unless and until reversed. (See Encyclopedia of
American and English Law, sub. tit. " Inferior Courts.") The rule for jurisdiction is
that nothing shall be intended to be out of the jurisdiction of a superior court but what
specifically appears to be so ; and on the contrary, nothing shall be intended to be
within the jurisdiction of an inferior court but what is so expressly alleged. (Peacock
V. Bell, 1 Saund. 73 )

The power to create these courts implies a power to abolish them, or to re-organize
them from time to time. This seems to have been definitely settled in the United States
(Kent, Comm. i. 303), and follows logically from the plenary nature of the powers of the
Parliament, within the sphere allotted to it. A judgeship, however, cannot be abolished
so as to destroy the tenure of an occupant. (See notes, § 287, supra. )

§§ 290-292.1

THE JUDICATURE. 727

§ 290. " Such Other Courts as it Invests with Federal

Jurisdiction."

These words enable the Federal Parliament, instead of or in addition to creating
federal courts, to confer upon other courts, not established by the Commonwealth — such
as State courts — a federal jurisdiction.

There is no corresponding provision in the Constitution of the United States, with
the result that " Congress cannot vest any portion of the judicial power of the United
States, except in courts ordained and established by itself." (Story, Comm. § 1593 ;
and see Kent, Comm. i. 397. )

§ 291. " A Chief Justice and so Many Other Justices."

Pbecedbsce. — The precedence of the Justices inter se may be regulated by the
Letters Patent of the Crown; see Be Bedard, 7 Moo. P.C, 23; Webb, Imperial
Law in Tic, (2hd Ed.), 94.

Juries. — The provision that the High Court shall consist of a Chief Justice and
other Justices cannot be construed to exclude federal legislation to provide for the trial
of issues of fact by juries under the direction of the Justices. The Constitution makes
no mention of juries in ci%"il cases ; but in criminal cases it expressh' provides that
trials on indictment " shall be by jury " (sec. 80). The Constitution of the United
States similarly made no mention of juries in civil cases, though the seventh amendment,
adopted immediately afterwards, provided that " in suits at common law, where the
value in controversy shall exceed 20 dollars, the right of trial by jur}- shall be pre-
served."

Under this Constitution there is clearly no obligation to try civil cases with a jury ;
but it is submitted that the power given by sec. 51 — xxxix., to make laws with
respect to " matters incidental to the execution of any power vested by this Consti-
tution . . . in the Federal Judicature, ' includes the power to provide for trial of
issues of fact by jury in any federal court in all cases in which the Federal Parliament
shall think it expedient to do so. The trial of civil issues by juries is such an ancient
and established institution of English law, that it may well be deemed not only
incidental, but even necessary, to the due administration of justice according to English
ideas.

§ 292. " As the Parliament Prescribes."

The Executive seems clearly precluded by these words from appointing any Justices
of the High Court until Parliament has prescribed the number of Justices of which the
Court is to consist. It appears, too, that no appointment of a Chief Justice or any
other Justice can legally be made until an ascertained salary has been made pa^'able by
law ; see Buckley v. Edwards (1892), App. Ca. 387, and notes, § 293, infra.

"The Constitution impliedly vests the Congi-ess with the power to create the
judgeships of the Supreme Court and endow them. The language of the Constitution is
that ' the judicial power of the United States shall be vested in one Supreme Court,'
&c. The Supreme Court itself seems thus to be created by the Constitution and there-
fore not subject to any power of Congress to constitute or abolish it ; but the Consti-
tution does not itself create the judgeships in this Court nor expressly declare what
organ shall do so. Without the judgeships, however, the Court would be only an
abstraction. From the clause which alludes to the general power of the Congress to
provide for the establishment of all offices not established by the Constitution and for
the method of filling the inferior offices, we infer that the Congress is vested with the
power to create the judgeships of the Supreme Court in such number as it shall deem
proper. Once established, however, and filled, the Congress has no power to abolish

them during the good behaviour of the existing inciunbeuts nor to diminish the

compensation attached thereto. It is a question whether Congress has the power to
abolish the judgeships of this Court at the legal expiration of the respective terms of
the existing incumbents. It seems to me that it has, although this might reduce the

728 COMMENTARIES ON THE CONSTITUTION. [Sec. 72.

Supreme Court to an abstraction again. The Congress ought, certainly, to maintain
these offices in sufficient number to do the business of the Court ; but if it should not do
so, I see no redress save at the elections. The only imperative command which the
Constitution issues to the Congress upon this subject is that there shall be but one
Supreme Court. Judicial unity is absolutely required, but everything else is left to the
discretion of the legislative body." (Burgess, ii., 157-8).

Judges' Appointment, Tenure, and Remuneration.

72. The Justices of the High Court and of the other
courts created by the Parliament —

(i.) Shall be appointed^^^ by the Governor-General in
Council :

(ii.) Shall not be removed^^* except by the Governor-
General in CounciP^^, on an address from both
Houses^^^ of the Parliament in the same session,
praying for such removal on the ground of proved
misbehaviour or incapacity^^^ :
(iii.) Shall receive such remuneration as the Parliament
may fix ; but the remuneration shall not be
diminished^^^ during their continuance in office.

United States.— The judges, both of the Supreme and inferior courts, shall hold their offices
during good behaviour ; and shall, at stated times, receive for their services a compen-
sation, which shall not be diminished during their continuance in office. — Art. III., sec. 1.

Canada. — The Judges of the Superior Courts shall hold office during good behaviour, but shall
be removable by the Governor-General on Address of the Senate and House of Commons.—
B.N.A. Act, sec. 99.

Historical Note.-- The origin of this clause dates from the early constitutional
struggles in England between the Crown and the people. Anciently, the judges held
their commissions during the King's pleasure, and under the Stuart kings the Bench
was systematically packed with partizans of the Crown. As early as Lord Coke's time,
indeed, the Barons of the Exchequer were appointed during good behaviour (4 Inst. 117);
and at the restoration of Charles II. the Commissions of the Common Law Judges were
in this form. (Kent's Commentaries, i. , 293. ) But there was no statutory restriction
on the Crown's pleasure until 1700, when the Act of Settlement (12 and 13 Will. III.
c. 2) provided that " judges' commissions be made guamdiu se bene gesserint, and their
salaries ascertained and established ; but upon the address of both Houses of Parlia-
ment, it may be lawful to remove them." In 1760, by the Act 1 George III. c. 23, it
was further provided that judges' commissions should continue notwithstanding the
demise of the Crown, and their salaries were secured to them during the continuance of
their commissions. These enactments for securing the dignity and independence of the
Bench form the basis of the constitutional provisions to a similar effect throughout the
British Empire.

In Great Britain, therefore, as well as all the Australian colonies, and in the
Dominion of Canada, judges hold their office " during good behaviour," and can be
removed by the Crown for misbehaviour without any address from Parliament ; whilst,
apart altogether from any question of technical misbehaviour, they can be removed by
the Crown upon an address from both Houses. In the Commonwealth Bill of 1891 a
new principle was introduced, and it was provided that the Judges should hold office
during good behaviour, and that it should " not be lawful for the Governor-General to
remove any Judge except upon an address from both Houses of the Parliament praying
for such removal." The intention apparently was to make the Address a necessary part
of the procedure in cases of misbehaviour.

§293.] THE JUDICATURE. 729

In the first draft of the Adelaide Bill this intention was made clear. In Committee^
at Mr. Kingston's suggestion, the t«nure was still further secured by limiting the
Parliamentary power of intervention to cases of '* misbehaviour or incapacity." It was
pointed out that in a Federal Constitution, where the Courts were the " bulwarks of the
Constitution" against Parliamentary encroachment, the Judges' independence of the
Legislature should be specially safe-guarded. (Conv. Deb., Adel., pp. 944-962.)

In the Melbourne session the tenure was still further secured by providing that the
Parliamentary addresses must pray for removal '* upon the grounds of proved misbe-
haviour or incapacity ; " thus ensiuing that the Judge should be heard in defence, and
that the charge against him should be alleged in the address. (Conv. Deb., Melb.,
pp. 308-318.) Drafting amendments were made before the first Report and after the
fourth Report.

§ 293. '< Shall be Appointed."

The appointment of Justices is an Executive Act, to be performed by the Grovernor-
General with the advice of the Federal Executive Council. No particular mode of
appointment by the Governor-General in Council is prescribed ; but the usual, if not
universal, mode of appointing colonial Judges is by letters patent under the royal sign
manual. (Todd, Pari. Govt, in Col., p. 829.) The sub-section dealing with appoint-
ment makes no provision as to tenure ; but sub-section 2, prescribing the only mode of
removal, shows that the tenure is during " good behaviour," with special restrictions as
to the mode by which misbehaviour or incapacity is to be proved and adjudicated on.
" The legal effect of the grant of an office during ' good behaviour ' is the creation of an
estate for life in the office. Such an estate is terminable only by the grantee's incapacity
from mental or bodily infirmity, or by his breach of good behaviour. But, like any
other conditional estate, it may be forfeited by a breach of the condition annfexed to it —
that is to say, by misbehaviour." (Todd, Pari. Govt, in England, p. 857.) This liability
to forfeiture is, of course, subject to the provisions as to proof and procedure in the
next sub-section. It seems that this section can only be construed as vesting in the
Governor-General in Council the appointment of Justices to whom an ascertained salary
is payable by law at the time of their appointment. (Buckley v. Edwards [1892], App. Ca.
387.) That was a case decided under the Supreme Court Judges Act, 1858 (N.Z.).
Sec. 2 of that Act provided that the Supreme Court of New Zealand should consist of a
Chief Justice, "and of such other Judges as His Excellency, in the name and on behalf
of Her Majesty, shall from time to time appoint." Sec. tj provided that "a salary
equal at least in amount to that which, at the time of the appointment of any Judge,
shall be then payable by law, shall be paid to such Judge so long as his patent or
commission shall continue and remain in force." The Constitution Act of New Zealand
contained a provision that it should not be lawful for the General Assembly to diminish
the salary of any Judge during his continuance in office. Lord Herschell, in delivering
the judgment of the Privy Council, quoted this provision in the Constitution, and said
(p. 394) : — " It is manifest that this limitation of the legislative power of the General
Assembly was designed to secure the independence of the Judges. It was not to be in
the power of the colonial Parliament to affect the salary of any judge to his prejudice
during his continuance in office. But if the Executive could appoint a judge without
any salary, and he needed to come to Parliament each year for remuneration for his
services, the proviso would be rendered practically ineffectual, and the end sought to be
gained would be defeated. It may well be doubted whether this proviso does not by
implication declare that no judge shall thereafter be appointed save with a salary
provided by law, to which he shall be entitled during his continuance in office, and his
right to which could only be affected by that action of the New Zealand legislature
which is excluded by the Imperial Act." Apart from this, it was held that a reading of
the whole of the New Zealand Act showed that the legislature did not contemplate the

730 COMMENTARIES ON THE CONSTITUTION. fSec. 72.

appointment of a judge to whom there was no salary payable by law. The principle of
the decision, as well as the strong dictum of Lord Herschell quoted above, seem to be
entirely applicable to the appointment of justices under this Constitution.

§ 294. "Shall not be Removed."

These words exclude all modes of removal other than the one mentioned. Ordinarily
a colonial judge may be removed by the Governor and Council of the colony for mis-
behaviour, subject to a right of appeal to the Privy Council ; it being provided by the
Imperial Statute 22 Geo. III. c. 75, that if any person holding an office by patent from
the Crown shall be wilfully absent without reasonable cause, " or shall neglect the duty
of such office, or otherwise misbehave therein," the Governor and Council may remove
him ; but if he thinks himself aggrieved, he may appeal to His Majesty in Council.
The Judicial Conmiittee of the Privj' Council has repeatedly decided that this law
applies to colonial judges. {Ex parte Robertson, re Gov. Gen. of N.S. W., 11 Moore P.C.
295 ; Todd, Pari. Gov. in Col., 46, 829, 837.) But the e.xpress words of the Constitution
clearly make this statute inapplicable to Justices of the Federal Courts. Again, under
the Imperial Statute 3 and 4 Will. IV. c. 41, s. 4, it is ordinarily competent for the
Crown to refer to the Judicial Committee a memorial from the legislature of a colony,
complaining of the judicial conduct of a judge, and thereupon the judge may be removed
by Order in Council (Todd, Pari. Gov. in Col., p. 831) ; but this procedure also is clearly
inapplicable to the Commonwealth. So also the modes of procedure by writ of scire
facias to repeal the patent, or by criminal information at the suit of the Attorney-
General— which are merely alternative ways of establishing misbehaviour (Todd, Pari.
Gov. in England, ii. 859) — are excluded.

§ 295. " Except by the Governor-General in Council."

The Constitutions of the Australian colonies provide for removal by "Her
Majesty ;" but this Constitution follows the B.N. A. Act, which provides (sec. 99) for
removal *' by the Governor-General." It is argued in Canada (see Todd, Pari. Gov. in
Ool., 2ud Ed., p. 835) that as the appointment of a Judge begins with the Governor-
General (not with the sovereign) it also ends with the Governor-General, and that a
right of appeal to the Crown in Council is excluded. This contention seems greatly
strengthened, under this Constitution, by the use of the words " Governor-General in
Council," which make the decision that of the Federal Executive. There is, however,
no authority directly in point. The cases in which the orders of amotion made by
Governors have been referred to the Privy Council were under the Act 22 Geo. III.
c. 75, which makes special provision for appeal. By the Constitutions of the Australian
colonies, which provide that the Houses of Parliament of the colony may pass an address
to " Her Majesty " for the removal of a Judge, the Governor and Executive of the
colony give no decision at all. The decision in such a case is entrusted to the Queen,
acting on the advice of her Imperial Ministers, and it seems that the dismissal of a
Judge is not regarded as a mere ministerial act, but as one involving a grave respon-
sibility, which Her Majesty .will not be advised to incur without satisfactory evidence
that the dismissal is proper. (Todd, Pari. Gov. in Col., p. 613.) There is then no
appeal to the Queen in Council; though the Queen may (as in the case of Judge Boothby,
of South Australia) seek the advice of the Judicial Committee before deciding. (Todd,
Pari. Gov. in Eng., ii., 899, 906.) Here, however, the responsibility is thrown on the
Federal Executive, and in the absence of any provision for an appeal, it would appear
that its decision is final. The case in fact appears to be closely analogous to the removal
of a British Judge by the Crown on addresses from the Imperial Parliament.

As to the question whether the Governor-General in Council, to whom the power of
amotion on address is given, is entrusted with any constitutional discretion as to the
exercise of that power, see note on Responsibility of Ministers, § 297, infra.

§§296-297.] THE JUDICATURE. 731

§ 296. " On an Address from Both Houses.*'

The provision as to the address differs from those of the Act of Settlement, the
British Xorth America Act, and the Australian Constitutions, by the requirement that
the Address must pray for removal " on the grounds of proved misljehaviour or
incapacity." As to the English power, Todd says (Pari. Gov. in Eng., ii., 860) : — "This
power is not, in a strict sense, judicial ; it may be invoked upon occasions when the
misbehaviour complained of would not constitute a legal breach of the conditions on
•\vhich the office is held. The liability to this kind of removal is in fact a qualification
of, or exception from, the words creating a tenure during good behaviour, and not an
incident or legal consequence thereof. In entering upon an investigation of this kind.
Parliament is lunited by no restraints, except such as may be self-imposed. "' These
words are quite inapplicable to the prosisions of this Constitution. Parliament is
^'limited by restraints" which rec^uire the proof of definite charges ; the liability to
removal is not " a qualification of, or exception from, the words creating a tenure," but
only arises when the conditions of the tenure are broken ; and though the procedure
and mode of proof are left entirely to the Parliament, it would seem that, inasmuch as
proof is expressly reciuired, the duty of Parliament is practically indistinguishable from
a strictly judicial duty. The importance of this distinction is, however, much
diminished by the fact that it is recognised that the procedure under the Act of Settle-
ment ought to be conducted on strictly judicial lines. The matter is discussed, and the
proper procedure indicated, by Todd (Pari. Gov. in Eng., ii., 860-875), where it is laid
down that '* no address for the removal of a Judge ought to be adopted by either House
of Parliament, except after the fullest and fairest enquiry into the matter of complaint,
by the whole House, or a Committee of the whole House, at the Bar ; notwithstanding
that the same may have already undergone a thorough investigation before other
tribunals" — such as a Royal Commissioa or a Select Committee.

The substantial distinction between the ordinarj- tenure of British Judges and the
tenure established by this Constitution is that the ordinary tenure is determinable on
two conditions ; either ( 1 ) misbehaviour, or (2) an address from both Houses ; whilst
under this Constitution the tenure is only determinable on one condition — that of mis-
behaviour or incapacity — and the address from both Houses is prescribed as the only
method by which forfeiture for breach of the condition may be ascertained.

From Both Houses. — Todd (Pari. Gov. in Eng., ii. 872) lays it down as "evident"
that while it is equallj' competent for either House to receive complaints and even to
institute enquiries as to the conduct of Judges, yet "a joint address under the statute
{i.e. the Act of Settlement) ought properly to originate in the House of Commons, as
being peculiarly the impeaching body, and pre-eminently ' the grand inquest of the
High Court of Parliament.' " The Parliament of the Commonwealth, however, is
neither a High Court nor a body possessing power of impeachment ; and however
desirable it may be that the House of Representatives should take the initiative, if the
unfortunate necessity for a joint address under this section should ever arise, the
reasons given by Todd have no application.

§ 297. "On the Ground of Proved Misbehaviour or
Incapacity."

MiSBEHAViocR OR INCAPACITY. — ^lisbehaviour means misbehaviour in the grantee's
official capacity. '* Quatndiu se bene gesnerit must be intended in matters concerning his
office, and is no more than the law would have implied, if the office had been granted
for life." (Coke, 4 Inst. 117.) "Misbehaviour includes, firstly, the improper exercise
of judicial functions ; secondly, w ilful neglect of duty, or non-attendance ; and thirdly,
a conviction for any infamous ofi"enc-e, by which, although it be not connected with the
duties of his office, the ofiender is rendered unfit to exercise any office or public
franchise." (Todd, Pari. Gov. in Eng., ii. 857, and authorities cited.)

732 COMMENTARIES ON THE CONSTITUTION. fSec. 72.

'* Incapacity " extends to incapacity from mental or bodily infirmity, which has
always been held to justify the termination of an office held during good behaviour.
(See notes, § 294, supra ; and Todd, Pari. Gov. in Eng., ii. 857.) The addition of the
word does not therefore alter the nature of the tenure of good behaviour, but merely
defines it more accurately.

No mode is prescribed for the proof of misbehaviour or incapacity, and the Parlia-
ment is therefore free to prescribe its own procedure. Seeing, however, that proof of
definite legal breaches of the conditions of tenure is required, and that the enquiry is
therefore in its nature more strictly judicial than in England, it is conceived that the
procedure ought to partake as far as possible of the formal nature of a criminal trial ;
that the charges should be definitely formulated, the accused allowed full opportunities
of defence, and the proof established by evidence taken at the Bar of each House.

Responsibility of Ministers. — The question then arises whether the Address
from both Houses practically determines the removal, or whether the Governor-General
in Council must exercise a constitutional discretion and incur the final responsibility of
action. In England, it is said that an address from the two Houses of the Imperial
Parliament ought to recapitulate the acts of misconduct which have occasioned the
adoption thereof, " in order to enable the sovereign to exercise a constitutional dis-
cretion in acting upon the advice of Parliament." (Todd, Pari. Gov. in Col., 2nd ed.,
p. 613). That discretion would, of course, be exercised, like every other executive act,
upon the advice of responsible Ministers ; so that in England it seems to be recognized
that the Executive, notwithstanding the Address, is not relieved of the responsi-
bility of satisfying itself in the matter.

Under this Constitution, however, the procedure differs in two respects. In the
first place, the power of removal, upon address, is given, not to the Governor-General,
but to the Governor-General in Council ; and in the second place, the Address itself can
only be passed on the ground of a proved breach of the legal tenure of the office.

The words "in Council," so far from establishing any difference between the
English and Australian systems, seem rather to establish an identity. They indicate
that the Governor-General acts in this regard, not as the servant of the Queen, but as
the constitutional ruler of Australia ; and that the responsibility of his action rests
upon the shoulders of his advisers. The real question, therefore, is whether the
Executive Council must bear the responsibility themselves, or whether they can rely
solely upon the address as the justification of their executive act, and thus leave the
whole responsibility with the Houses of Parliament —the body to whom the Consti-
tution entrusts the judicial duty of establishing the proof of misbehaviour or incapacity.

The Letellier case, in Canada, throws some light on this question. M. Letellier
was Lieutenant-Governor of the Province of Quebec, and his action in dismissing his
Ministers in 1878 led to resolutions in both Houses of the Dominion Parliament con-
demning his action. By sec. 59 of the British North America Act, a Lieutenant-
Governor holds office during the pleasure of the Governor-General, but is not removable
within five years after his appointment, except for cause assigned. The Dominion
Ministry advised the Governor-General to remove M. Letellier ; and on the Governor-
General demurring to this policy, the Premier informed him "that it was not at all
necessary, in order to justify their advice, to go behind the vote of Parliament ; even if
their opinion had been adverse to that arrived at by Parliament, it seems clear that
they are bound to respect that decision, and to act upon it, as they have done, by
advising the removal." Ultimately the Governor-General, on the suggestion of the
Secretary for State, asked the Ministers to review their action, and to satisfy them-
selves whether it was " necessary for the advantage, good government, or contentment
of the Province that so serious a step should be taken as the removal of the Lieutenant-
Governor from office." After "anxious consideration," they adhered to their advice,
and M. Letellier was removed.

§ 297] THE JUDICATURE. 733

With respect to the contention of Ministers in that case that it was unnecessary to
go behind the vote of. Parliament, Todd observes : —

"This statement involves a complete abnegation of ministerial responsibility, and
a surrender of the safeguards over individual rights which ministerial responsibility is
intended to afford. We have elsewhere shown that ' any direct interference by reso-
lution of parliament in the details of government is inconsistent with and subversive,
of the kingly authority, and is a departure from the fundamental principle of the
British Constitution which vests all executive authority in the sovereign, while it
ensures complete responsibility for the exercise of every act of sovereignty.' And that
' no resolution of either house of parliament which attempts to adjudicate in any case
that is within the province of the government to determine has of itself any force or
effect.' Even where parliament has been invested by statute with the direct right of
initiating a criminatory proceeding for the removal of a high public functionary, as
where a judge is declared to be removable upon an address from the two houses of the
Imperial Parliament, constitutional practice requires that, in any such address, ' the
acts of misconduct which have occasioned the adoption thereof ought to be recapitulated,
in order to enable the sovereign to exercise a constitutional discretion in acting upon
the advice of parliament.' " (Todd, Pari. Gov. in Col., 2nd ed., pp. 612-3.)

M. Letellier's case illustrates the general principles of Ministerial responsibility ;
and, on the authority of Todd, that principle extends to the removal of a Judge after the
semi- judicial procedure by Address under the Act of Settlement. This Constitution,
however, goes much further than the Act of Settlement by making the decision of the
two Houses substantially a judicial one ; and it is certainly open to argument that this
•circumstance goes far to transfer the real responsibility from the Executive Council to
the Houses of Parliament.

At the same time, it cannot be ignored that the act of removal is an executive one,
and is entrusted by the Constitution to the Executive department — that is, to the
Governor-General in Council. It is hard to conceive of a case in which an Address
passed by both Houses in the same session, alleging that misbehaviour or incapacity
was proved, would not be concurred in by the Executive Council ; but if such a case
should arise, the members of the Executive Council are the keepers of their own
consciences, and the advice which they give to the Governor-General cannot be dictated
to them by the Houses of Parliament. For whatever action they take or refuse to take
they will be responsible in the ordinary way both to the Parliament and to the people.

Suspension. — The Constitution makes no mention of any power to suspend
Justices. It may be argued that the power of amotion carries with it the lesser power
of suspension, and that a Justice may be suspended by the same procedure by which he
may be remov^ed. (See Todd, Pari. Gov. in Eng., ii. 890-898.) But a more serious
question is whether the Governor-General in Council, without a joint address from both
Houses alleging "proved misbehaviour or incapacity," may in any case suspend a
Justice of a Federal Court. On the one hand, the Constitution does not expressly
prohibit suspension, and "at common law the grantor of an office has the power to
suspend the grantee from his duties, though not to affect his salary or emoluments."
(See opinion of Att. Gen. of Vic. , cited Todd, Pari. Gov. in Eng. , ii. 893 ; Slingsby's
case, 3 Swanston 178.) On the other hand, the English Crown law officers, in the
Queensland case cited in Todd, Pari. Gov. in Eng. , ii. 896, deny the right of a Governor
(even where he possesses power of amotion under 22 Geo. III. c. 75) to suspend a Judge
holding office during good behaviour. It would seem that suspension is a temporary
removal, and that as the Governor-General in Council hjis no power of his own motion
to remove, he has no power to suspend. Certainly such a power would be open to
dangerous abuses, and might endanger the independence of the Bench as a constitutional
bvdwark against Parliamentary encroachment.

Reasons fob Security of Judicial Tenure. — The peculiar stringency of the
provisions for safeguarding the independence of the Federal Justices is a consequence
of the federal nature of the Constitution, and the necessity for protecting those who

734 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

interpret it from the danger of political interference. The Federal Executive has a
certain amount of control over the Federal Courts by its power of appointing Justices ;.
the Federal Executive and Parliament jointl}' have a further amount of control by their
power of removing such Justices for specified causes ; but otherwise the independence
of the Judiciary from interference by the other departments of the Government is
complete. And both the Executive and the Parliament, in the exercise of their con-
stitutional powers, are bound to respect the spirit of the Constitution, and to avoid any
wanton interference with the independence of the Judiciary. ' ' Complaints to Parlia-
ment in respect to the conduct of the judiciary, or the decisions of courts of justice,

should not be lightly entertained Parliament should abstain from all

interference with the judiciarj', except in cases of such gross perversion of the law,
either by intention, corruption, or incapacity, as make it necessary for the House to
exercise the power vested in it of advising the Crown for the removal of the Judge."
(Todd, Pari. Gov. in Eng., i. 574.)

§ 298. " The Remuneration shall not be Diminished."

It has been held in the United States that Congress cannot, under the Constitution^
levy a tax on the salary of a judicial officer of a State. (Buffington v. Day, 11 Wall.
113.) It would seem that a tax on the salary of the Justices of the Federal Court?
would be equally unconstitutional, as being a diminution of their salary.

Appellate jurisdiction of High Court.

73. Tlie High Court shall have jurisdiction^^, with such
exceptions and subject to such regulations^^" as the Parlia-
ment prescribes, to hear and determine appeals^°^ from all
judgments, decrees, orders, and sentences^"^ —

(i.) Of any Justice or Justices exercising the original
jurisdiction of the High Court^"^ :

(ii.) Of any other federal court, or court exercising
federal jurisdiction^"* ; or of the Supreme
Court of any State^"'^, or of any other court of
any State^"" from which at the establishment
of the Commonwealth an appeal lies to the
Queen in Council :

(iii.) Of the Inter-State Commission, but as to
questions of law only^°" :
and the judgment of the High Court in all such cases shall be
final and conclusive^"^.

But no exception or regulation prescribed by the Parlia-
ment shall prevent the High Court from hearing and
determining any appeal from the Supreme Court of a State
in any matter in which at the establishment of the^Common-

THE JUDICATURE. 73.>

wealth an appeal lies from such Supreme Court to the Queen
in Council.

Until the Parliament otherwise provides, the conditions
of and restrictions on appeals^ to the Queen in Council from
the Supreme Courts of the several States shall be applicable
to appeals from them to the High Court.

Unmtkd Statbs. — The judicial power shall extend to all cases in law and equity arising under
this Constitution, the laws of the United States, and treaties made, or which shall he
made, under their authority [to all cafes affecting ambassadors, other public Ministers,
and consuls] : to all cases" of admiralty and maritime jurisdiction ; to controversies to
which the United States shall l>e a party ; to controversies [between two or more States ;
between a State and citizens of another Staff]: between citizens of different States;
between citizens of the same State claiming lands under jrrants of different States;
and between [a State, or] the citizens thereof, and foreign States, citizens, or foibjects.

[In all c-ases affectinjr ambassadors, other public Ministers, or consuls, and those in
which a State shall be party, the Supreme Court shall have oriarinal jurisdiction.] In all the
other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as
to law and fact, with such exceptions and under such regulations as the Congress shall
make.— Const., Art. III., sec. 2.

Historical Note. — A General Court of Apjjeal for Aii.?tralia was included in the
earliest schemes of Federation, from 1849 do\m wards (see pp. 85, 91, 94, »ti/>ra). The
Federal Council Act of 188.5, however, did not pro\-ide for the establishment of a federal
Court of Appeal.

In 1870 a Royal Commission was appointed by the Oovermnent of Victoria to
consider and report upon the expediency of in^-iting the co-operation of the Australian
colonies to pro\*ide for intercolonial legislation on various matters and ' ' to establish a
court of appeal." The Commission consisted of Messrs. J. .J. Casey (Chairman), Francis
Murphy, .Jas. A. McPherson, C. Gavan DuflP\-, J. Macgregor, G. B. Kerferd, G. P. Smith,
T. H. Fellows, and George Higinbotham. In April, 1871, the Commission brought up a
first Report, which was signed by onh" seven of the Commissioners — Mr. Fellows being
out of the colon}-, and Mr. Higinbotham ha^^ng refused to act. The part of this report
which deals with the establishment of a court of appeal contains the following passages :—

" Considerations of grave importance suggest the expediency, if not the necessity,
that a Couit of Appeal, formed of Colonial judges, should be established for the
Australasian colonies. The c-ost and delay occasioned by appeals to the Pri^"A• Council
would be removed. Judges conversant with colonial life, manners, and laws would
adjudicate on matters presenting peculiar and distinct features — the result of colonial
habits, industries, and trade. The decisions of the various Supreme Courts of the colonies
upon purely colonial affairs would thereby be brought into harmony, and uniformity of
law be thus encouraged, to the great advantage of commerce. The first eftective step
towards the imion and consolidation of the colonies woidd thus, it is thought, be consum-
mated. We recommend that a Court of Appeal for Australasia be formed, consisting of
one judge from each colony, and that the Court should sit in each colony successively, or
at such places as may be determined upon as occasion required ; and that the quorum be
regulated in proportion to the number of colonies that appointed judges."

" Another question arises as to how far the Court of Appeal is to be one of final
determination, excluding the appeal to Her Majesty in Council. We deem it advisable
to leave to the Legislature of each colony to determine that question for itself, by
empowering the colonies to enact suitable laws pro\nding the cases in and the terms upon
which an appeal may be had to the Queen." (Pari. Papers [Vic], 1871, vol. ii. p. 711.)

To the report was appended the draft of an "Australasian Legislation Bill" to be
passed by the Imperial Parliament, pro\iding for intercolonial legislation on several
subjects, and for the establishment of a Court of Appeal on the lines indicated. The
part of the report dealing with the Court of Appeal was submitted by Lord Kimberley
(Secretary of State tor the Colonies) to the Lord President of the Privy Council. The
reply of the President is contained in a letter from the Registrar of the Pri\-y Council,
dated 20th Jtxly, 1871, which, after dealing with the Commi.ssion's criticisms of the
existing ap|>ellate system, concludes as follows : —

736 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

" The appellate jurisdiction of Her Majesty in Council exists for the benefit of the
colonies, and not for that of the mother country ; but it is impossible to overlook the
fact that this jurisdiction is a part of the prerogative which has been exercised for the
benefit of the colonies from the date of the earliest settlements of this country, and that
it is still a powerful link between the colonies and the Crown of Great Britain. It
secures to every subject of Her Majesty throughout the Empire his right to claim redress
from the Throne ; it provides a remedy in certain cases not falling within the jurisdiction
of ordinary Courts of Justice ; it removes causes from the influence of local prepossessions ;
it affords the means of maintaining the uniformity of the law of England in those colonies
1 which derive the great body of their law from Great Britain ; and it enables suitors, if
they think fit, to obtain a decision in the last resort from the highest judicial authority
-and legal capacity existing in the metropolis.

" The power of establishing or remodelling the Colonial Courts of Justice is vested
by the 28 and 29 Victoria in the colonial legislatures ; and it is undoubtedly desirable
that the colonial Courts of Justice should be so constituted as to inspire confidence in
their decisions, and to give rise to very few ulterior appeals. That is in fact the case
with the Superior Courts of Westminster Hall ; and the small number of appeals from
the Australian courts is the best testimony to the excellence of those courts also. But
the controlling power of the Highest Court of Appeal is not without influence and
value, even when it is not directly resorted to. Its power, though dormant, is not
imfelt by any Judge in the Empire, because he knows that his proceedings may be made
the subject of appeal to it.

"But it by no means follows as a necessary consequence of the powers vested in the
colonial Legislatures by the 28 and 29 Victoria that laws should be enacted which would
control the exercise of the prerogative of the Crown in the exercise of its Supreme
Appellate Jurisdiction."

Sydney Convention, 1891. — The clause as introduced and passed without discussion
in 1891 was substantially identical with this section, with the exception of the provision
for an appeal from the Inter-State Commission — a body not provided for by the Bill of
1891.

Adelaide Sessioii, 1897. — At the Adelaide session the clause was introduced in
practically the same form, with two additions. After " appeals," the words " both as
to law and fact" were inserted ; and a proviso was added that " no fact tried by a, jury
shall be otherwise re-examined in the High Court than according to the rules of the
common law." (See U.S. Constitution, Amend, vii.) But in Committee Mr. Wise, who
was responsible for these additions, moved their omission as being unnecessary, and they
were struck out. (Conv. Deb., Adel., pp. 967-8.)

Melbourne Session, 1898.— [See Debates, pp. 322-47, 1885-94, 2276-2325, 2419-22,
2453-6. A great part of the debate on this section turned on the question of appeals to
the Privy Council ; for which see Historical Note to next section.) The general key to
the long and complicated debates on this and the following section, and to the numerous
amendments suggested, made, and reconsidered, may be found in a short statement of
the dilemma that had to be grappled with. Everyone wanted a federal court of appeal ;
everyone did not wish to abolish the appeal to the Privy Council ; and yet no one wished
to multiply appeals. The cumulative right of appeal, Srst to the High Court and then
to the Privy Council, would increase the delay and the cost of litigation. The
alternative right of appeal, either to the High Court or the Privy Council, would leave
two final tribunals. The opinions of the Convention wavered as one or other aspect of
this difficulty became more prominent.

A suggestion of the Parliament of New South Wales, that the High Court should
only have jurisdiction to hear appeals " where the parties consent," was negatived, as
practically destroying the appellate jurisdiction of the Court ; though in the course of
the debate, which discussed the relative merits of the High Court and the Privy Council,
opinions in favour of an alternative right were expressed. (Conv. Deb., Melb. , pp. 322"
31 ; and see Historical Note to next section.)

The omission of the power of Parliament to make " exceptions " to the appellate
jurisdiction of the High Court was twice proposed : first by Mr. Glynn (Debates, Melb.,
pp. 331-2), and afterwards by Mr. Barton (pp. 1885-94), on the ground that it gave

4 299.] THE JUDICATURE. 737

Parliament too >Tide aud absolute a discretion to cut do\m the right of appeaL On the
other hand, it was argued that to take away the power of exception would go too far. by
giving an absolute right of appeal in every trumpery case ; and the amendment was
accortlingly negatived on both occasions. Finally, Mr. Glynn proposed and carried a
compromise to the effect that nothing in the section should be construed to prevent the
High Court from hearing appeals from the Supreme Court of a State in cases where
there now exists a right of appeal from such Supreme Court to the Privy CounciL
(Debates, pp. 2323-5.) This was ultimatelj* redrafted into the second paragraph of the
clause.

Before the Bill was reported a first time, the Drafting Committee, in accordance
with an understanding with the Convention, added an appellate jurisdiction from
judgments " of the Inter-State Commission." This caused considerable debate in
Committee (pp. 2276-2325). Sir George Turner and Mr. Isaacs, who thought that the
questions to be decided by the Commission were political rather than judicial, complained
that this gave the control of Inter-State Commerce entirely to the High Court, which
was not a tribunal with a suitable knowledge of the questions which would arise. On
the other hand it was pointed out that it would not do to make the Commission an
irresponsible tribunal, altogether above the Constitution. Mr. GUiin maintained that
in the United States the Inter-State Commission was administrative only, not judicial,
and that it ought to be the same here. Sir George Turner's amendment to omit the
words was negatived ; but with a view to meeting his objections the appeal was limited
to " questions of law only."

After the referendum of 1898, both Houses of the Xew South Wales Parliament
included among their suggested amendments a proposal that " the mode of appeal from
the Supreme Courts of the States should be made uniform, namely, the appeal should
either be to the Privy Council or to the High Court, but not. as at present, indiscrimi-
nately to either " The Premier's Conference of 1899, however, declined to recommend
any such amendment. (See pp, 217, 220, supra).

Imperial Parliament, 190iJ. — In the Bill as introduced into the Imperial Parliament,
when Clause 74 was omitted, the last paragraph of Clause 73 M'as detached and placed
as new Clause 74. In a schedule of amendments circulated at the time of the second
reading, Mr. Chamberlain proposed to insert, after "final and conclusive," the words
*' unless the Queen grants special leave to appeal in accordance with section 74 ;" to
restore the last paragraph ; and to insert a new Clause 74 allowing an appeal, in questions
as to the limits of constitutional powers, by consent of the Executive Governments
concerned. (See Hist. Note to sec. 74.) In Committee, however, as part of the final
arrangement, this clause was restored to the shape in which it was passed by the
Convention.

§ 299. '<3hall Have J>irisdiction.'^

"Jurisdiction" is a content of the judicial power; it is in fact the power of a
Court to entertain an action, suit, or other proceeding.

This section confei-s upon the High Court a general appellate jurisdiction in all
matters decided by the State Courts of last resort, by other federal courts, by Judges of
the High Court itself in the exercise of the original jurisdiction of the Court, and (on
matters of law only) by the Inter-State Commission. The original jurisdiction of the
High Court is limited to matters in which the subject matter of the suit, or the character
of the parties, fall under certain specifietl heads ; but the appellate jurisdiction has no
such limits. It extends (subject to the excepting and regulating power of the Parlia-
ment) not onh- to all decisions of courts of original federal jurisdiction, but also to all
decisions of the Supreme Courts of the States, irrespective of whether the subject-
matter of the suit, or the character of the parties, would have brought it within the
original jurisdiction of the federal courts. In other words (see § 288, supra) the High
<^ourt is not merely a federal, but also a national court of appeal ; it occupies the

738 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

provincial as well as the federal sphere, and is the apex of the judicial systems of the
States, as well as of the judicial system of the Commonwealth.

The jurisdiction of the High Court as a court of appeal from the State Courts is,
however, not exclusive. The Constitution grants a new right of appeal from the State
Courts to the High Court ; but it does not take away the existing right of appeal from
the State Courts to the Privy Council, which therefore remains unimpaired (see Note,
§ .305, infra). Parties to cases decided by the Supreme Court of a State have therefore
an alternative right of appeal either to the Privy Council direct or to the High Court.

A similar alternative right of appeal has for some time existed in New South Wales
— and formerly existed in Victoria also — from a single judge, sitting in the equitable
jurisdiction of the Supreme Court, either to the Supreme Court in Banco or direct to
the Queen in Council. (See Equity Act, 1880 [N.S.W.], sees. 70, 79 ; Dean v. Dawson,
9N.S.W. L.R. Eq. 27; 15 Vic. No. 10 [Vic] ; 19 Vic. No. 13 [Vic], sec 5; Garden
Gully V. McLister, 1 App. Ca. 39 ; Davis v. Reg., 1 V.L.R. Eq. 33 ; WooUey v. Ironstone
Hill Lead Co., 1 V.L.R. Eq. 237.) Under the Supreme Court Act, 1890 (Vic.) this right
of appeal from a single judge of the Supreme Court in Victoria does not now exist.
(Australian Smelting Co. v. British Broken Hill Propr. Co. , 23 V.L.R. 643 ; 20 A.L.T. 46).

§ 300. ''With Such Exceptions and Subject to Such
Regulations."

ExcEPTioss AND REGULATIONS. — The powcr to prescribe " exceptions " is the power
to limit the jurisdiction by excluding specified cases or classes of cases from it. The
power to prescribe '* regulations " is the power to regulate the mode in which the
jurisdiction shall be exercised. These words give the Parliament power to prescribe
both exceptions and regulations. Apart altogether from this section, a power to
prescribe regulations is clearly conferred by section 51 — xxxix., which empowers the
Parliament to make laws with respect to " Matters incidental to the execution of any
power vested by this Constitution in . . . the Federal Judicature."

The whole appellate jurisdiction is conferred by the Constitution itself, without tlie
need of any intervention by the Parliament. In the absence of any statute prescribing
exceptions or regulations, the jurisdiction exists without exception or regulation. This
construction, which accords with principle, is now settled with regard to similar M^ords
in the United States Constitution. (Durousscau v. United States, 6 Cranch .307 ; Kent,
i. 325; Story, § 1773.) In an earlier decision, however (Wiscart v. Dauchy, 3 Dallas,
321), the Supreme Court considered that its whole appellate jurisdiction depended upon
the regulations of Congress, as that jurisdiction was given by the Constitution in a
qualified manner. " The Supreme Court was to have appellate jurisdiction, ' with such
exceptions and under such regulations as Congress should make ; ' and if Congress had
not provided any rule to regulate the proceedings on appeal, tlie Court could not exerci.se
an appellate jurisdiction." (Kent, i. 324.) The early Judiciary Acts proceeded on this
mistaken principle, and purported to confer jurisdiction affirmatively ; but those Acts
are now construed not as giving jurisdiction, but as making exceptions by implying a
negation of jurisdiction in every case where jurisdiction does not purport to be
affirmatively given.

Limitation of Excepting and Regulating Power. — Except as regards appeals
from the Supreme Courts of the States in the matters defined in the second paragraph
of the section, the power to except and regulate is — as it is in the United States —
absolute and unlimited.

" This power of the Legislature over the judiciary is a most serious one. It places
the appellate power of the court very nearly at the mercy of the legislature. The
legislature has made use of this power in the passage of the several Judiciary Acts, and
I do not know that it can be said to have abused it. It seems to me, however, an
unnecessary surrender of the independence of the courts to require that things whicl»

§ 300.] THE JUDICATURE. 739

_— 1

can be better accomplished by the mles of court shall wait npon the pleasure, or.
possibly, caprice of the legislature." (Burgess, PoL Sci. ii. 331.)

" The Constitution, further, expressly confers upon the Congress the power to
regulate the appeal and removal of causes from the Courts of the States, and from the
inferior courts of the general government, to the Supreme Court. This is also a dis-
cretionary power in the Congress. There is no doubt that Congress is under a stronger
moral obligation to act when its action is necessary for the completion and regulation of
the government machinery than when it has to deal with questions of policy mereh-, or
even of individual rights; but it is placed under no stronger legal obligations." By
inaction it may thus defeat many of the fundamental purposes of the Constitution without
anv redress, except such as mav be secured at the elections." (Burgess, Pol. Sci. ii.
158.)

The Convention (see Historical Note, suprxi) took the view that the Parliament
ought not to be able to deprive the High Court of an appellate jurisdiction equal to that
now exercised by the Privy Council ; that no exception or regulation should " prevent
the High Court from hearing and determining any appeal from the Supreme Court of a
State in any matter in which at the establishment of the Commonwealth an appeal lies
from such Supreme Court to the Queen in Council."

The strict language of the Constitution seems to refer rather to the right of the
High Court to hear and determine appeals, than to the right of the party to have his
appeal heard. The Constitution does not expressly forbid the Parliament to prescribe
certain exceptions, but declares that exceptions prescribed shall not prevent the High
Court from exercising jurisdiction. It may perhaps be argued that an exception of this
kind, if prescribe<l, might be eflFective to cut down a party's absolute right of appeal,
though it would clearly be void so far as it purported to cut down the right of the High
Court to hear the appeal, if it thought fit. And it might also be argued that this
c-onstruction would not be inconsistent with the object of the provision, which aims, not
at securing an absolute right of appeal, but at making the jurisdiction of the High Court,
within defined limits, independent of Parliamentarj' interference. It does not seem,
however, that this distinction was present to the minds of the framers of the Constitu-
tion.

The reference to matters " in which at the time of the establishment of the Common-
wealth an appeal lies from such Supreme Com-t to the Queen in Coimeil " makes it
necessarj" to ascertain and define those matters.

It is conceived that the pro^-ision refers only to those cases in which, at the
establishment of the Commonwealth, an appeal may be brought oj» a matter of right.
The Queen has a prerogative right (see § 310, injra) to review the decisions of all colonial
courts, c\\\\ and criminal, unless this prerogative has been annulled by charter or
statute ; but to construe the above provision of the Constitution as extending to this
prerogative right of appeal would make it include every decision of the Supreme Courts
of the States, and would therefore make the words " in any matter in which .
an appeal lies," &e., mere surplusage.

" An appeal cannot be brought as a matter of right unless the value of the matter
actually in dispute in the appeal be such as has been fixed by law for the particular
tribunal from which the appeal is brought." (Macpherson, Pri^-y Council, p. 1.) The
appealable amount for appeals from the Supreme Courts has been fixed by Orders in
Council made at different times.

From the Supreme Court of Xew South Wales, by Order in Council of 13th
November, 1850, any party m&y appeal to the Queen in Council from any final judgment,
decree, order, or sentence of the Supreme Court, " in case any such judgment, decree,
order, or sentence shall be given or pronovmced for or in respect of any sum or matter
in issue above the amount or value of £500 sterling, or in case such judgment, decree,
order, or sentence shall involve directly or indirectly any claim, demand, or question,
to or respecting property or any civil right, amounting to or of the value of £500
sterling.."

740 COMMENTARIES O?^ THE CONSTITUTION [See. 73.

The same appealable amount is fixed with regard to the Supreme Court of Victoria
by Order in Council of 9th June, 1860 ; with regard to the Supreme Court of Queensland
by Order in Council of 30th June, 1860 ; with regard to the Supreme Court of South
Australia by Order in Council of 10th May, 1860 ; with regard to the Supreme Court of
Western Australia by Order in Council of 11th October, 1861 ; with regard to the
Supreme Court of New Zealand by Order in Council of 9th June, 1860. With regard to
the Supreme Court of Tasmania the appealable amount is, by Order in Council of 4th
March, 1851, fixed in similar terms at £1000 sterling. (See, for particulars of these
several Orders in Council, Macpherson, Privy Council, Appendix.)

To cases within these Orders in Council, therefore, the power to make exceptions,
and so exclude an appeal from tlie Supreme Court of a State to the High Court, will not
apply. That is to say, the Federal Parliament cannot exclude appeals from final
judgments of the Supreme Courts of the States for matters in issue of the value of £500,
or where any property or civil right of the value of £500 is involved (or, in the case of
Tasmania, £1000). But the Parliament may exclude or allow an appeal as to all inter-
locutory orders, or as to final judgments where the amount involved is less than the
appealable amount, or in criminal and other cases where no property, or civil right
having a money value, is involved.

The limitation on the power of Parliament to prescribe exceptions and regulations
applies only to the specified appeals from the Supreme Courts of States. Consequently
the excepting power is unlimited with regard to appeals (1) from Justices exercising the
original jurisdiction of the High Court ; (2) from other federal courts, or courts
exercising federal jurisdiction ; (3) from State Courts (other than the Supreme Courts)
from which an appeal lies to the Queen in Council ; (4) from the Inter-State Commission ;
and (5) from the Supreme Courts of the States, in matters in which, at the establishment
of the Constitution, an appeal did not lie to the Queen in Council. With regard to such
appeals the appellate jurisdiction is, in the words of Burgess, "very much at the mercy
of the Legislature."

§ 301. " To Hear and Determine Appeals."

An appeal is a proceeding taken to test the decision of a court, and rectify it if
erroneous, by submitting it to a higher Court. The use of the word in this sense is
compaiatively modern. In English law an appeal formerly meant an " appeal of felony,"
or criminal accusation (Norman-Fr. appel, from appeler, to accuse), whilst the terms
used for what is now known as appellate jurisdiction were " error " or " rehearing " as
the case might be. The modern use of the word "appeal" seems to have been intro-
duced into the temporal courts from the ecclesiastical courts, and to be derived directly
from the Latin appellare. (See Sweet, Law Dictionary ; Wharton, Law Lexicon, subt
it. "Appeal.")

The word is used without limitation of any kind, and leaves the whole question of
the mode of appeal and the procedure on appeal to be regulated by the Parliament. It
clearly includes appeals on matters of fact as well as on matters of law. This would be
clear from general usage in any case, but is placed beyond doubt by subs, iii., which
with regard to appeals from the Inter-State Commission imposes the limitation that the
appeal shall be " as to questions of law only," implying that the appeals mentioned in
the other sub-sections may be as to questions of fact as well as law.

The essential attribute of an appeal is that it is a judicial proceeding for the purpose
of revising a judicial proceeding.

" The essential criterion of appellate jurisdiction is, that it revises and corrects the
proceedings in a cause already instituted, and does not create that cause. In reference
to judicial tribunals, an appellate jurisdiction, therefore, necessarily implies that the
subject-matter has been already instituted in and acted upon by some other court, whose
judgment or proceedings are to be revised. This appellate jurisdiction may be exercised
in a variety of forms, and indeed in any form in which the Legislature may choose to

§§ 301-302.]

THE JUDICATURE. 741

prescribe ; but still, the substance must exist before the form can be applied to it. To
operate at all, then, under the Constitution of the United States, it is not sufficient that
there has been a decision by some officer or department of the United States ; it must be
by one clothed with judicial authority, and acting in a judicial capacity. A power,
therefore, conferi-ed by Congress on the Supreme Court, to issue a mandamus to public
officers of tlie United States generally, is not warranted by the Constitution ; for it is in
effect, under such circumstances, an exercise of original jurisdiction. But where the
object is to re\-ise a judicial proceeding, the mode is wholly immaterial ; and a writ of
habfcui corpus, or mandamus, a writ of error, or an appeal, may be used, as the
Legislature may prescribe.

" The most usual mofles of exercising appellate jurisdiction, at least those which are
most known in the United States, are by a writ of error, or by an appeal, or by some
process of removal of a smt from an inferior tribunal. An appeal is a process of ciHl
law origin, and removes a cause, entirely subjecting the fawit, as well as the law, to a
i-e\new and a retriaL A writ of error is a process of common law origin, and it removes
nothing for re-examination but the law. The former mode is usually adopted in cases of
e^juitv and admiralty jurisdiction ; the latter in suits at common law tried by a jury."
(Story, Comm. §§ 1761-2.);

§ 302. "From all Judgments, Decrees, Orders, and

Sentences.''

These four words, "judgments, decrees, orders, and sentences," are taken from the
Imperial Act, 7 and 8 Vic. c. 69, sec. 1 (which extends the right of appealing to the Privy
Council), and from the Orders in Council made thereunder. They are all words which
may be used in a general sense, to overlap one another, or in a more limited sense, in
contrast to one another. Their cumulative use in this Constitution makes it unnecessary,
as a matter of constitutional interpretation, to construe them distributively ; but in
order to ascertain the combined scope of the words it will be convenient to examine
their individual meanings.

" Judgment," in its widest sense, m^ns any judicial determination, or decision of a
court. Under the former practice of the English Superior Courts, the word was usually
applied to decisions of the Common Law Courts, the word " decree " being generally
used in the Courts of Chancery. As contrasted with an "order," or direction on
matters outside the record, a judgment is a decision pronounced on matters contained in
the record. (Stroud, Judicial Dictionary, syb. tit. "Judgment" and "Order.") In
criminal proceedings, " judgment " means the sentence of the Court on the verdict, or
on the prisoner's plea of guilt}-. Judgments may be either interlocutory — i.e., given
upon some intermediate proceeding, and not finally determining or completing the suit
or action ; orJincU — i.e., putting an end to the suit or action by awarding or refusing to
award redress.

" Decree " is the word generally used as equivalent to " judgment " in courts of
equitable jurisdiction, and other jurisdictions where the procedure of courts of equity is
adopted. A decree, like a judgment, may be either final or interlocutory.

" Order," generall}- speaking, means, any direction or command of a court ; but it is
commonly used, in opposition to "judgment" or "decree," to describe orders on inter-
locutory applications.

" Sentence," in its widest sense, means any judicial determination, but is most
commonly used in connection with criminal proceedings, to denote the judgment of the
covurt in a criminal trial upon the verdict of the jur\- or upon the prisoner's plea of guilty.
For further definitions of all these terms, see Wharton's Law Lexicon, Stroud's Judicial
Dictionary, and Sweet's Law Dictionary.

The four words taken together are clearly wide enough to include every judicial
decision, final or interlocutory, in everj' jurisdiction, civil or criminal.

742 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

§ 303. " Of any Justice or Justices Exercising the Original
Jurisdiction of the High Court."

Under sec. 79 the federal jurisdiction of any court may be exercised by such number
of judges as the Parliament prescribes, and presumably most of the original jurisdiction
of the High Court will be made exercisable by a single Justice, sitting with or without
a jury. (See Note, Juries, § 291, supra.) But whether the original jurisdiction is
exercised by one Justice or more, there will be — subject to the excepting and regulating
power of Parliament — an appeal to the High Court in its appellate jurisdiction. The
excepting and regulating power in this respect (see Note, § 300, supra) is unlimited ; so
that Parliament may make it competent for the High Court to deal finally with any class
of matters in the first instance.

§ 304. " Of any other Federal Court, or Court Exercising
Federal Jurisdiction."

"Federal Courts" (see sec. 71) are those created by the Parliament ; while "courts
exercising federal jurisdiction " comprise those State courts, not created by the Parlia-
ment, which the Parliament has invested with federal jurisdiction.

Appeals from these courts are subject to the unlimited excepting and regulating
power of the Parliament. (See Note, § 300, siipra.)

§ 305. *' Of the Supreme Court of any State."

These are the words which make the High Court not merely a federal court of
appeal, but a national court of appeal of general and unlimited jurisdiction. Appeals
from any Justice or Justices of the High Court itself in its original jurisdiction, and
from other federal courts or courts of federal jurisdiction, can, of necessitj', only arise in
the specific cases where original jurisdiction is granted by the Constitution, or may be
conferred by the Parliament ; but appeals from the Supreme Courts of the States extend
to all cases, without regard to the subject matter or the character of the parties.

The excepting and regulating power of Parliament extends to appeals from the
Supreme Courts of the States, but subject to a special limitation (see Note, § 300, stipra)
which gives the High Court a constitutional right to entertain appeals in all cases where
there is now an appeal as of right to the Queen in Council. Thus the position of the
High Court, not only as the " guardian of the Constitution," but as a general court of
appeal for Australia, is constitutionally secured.

This section confers a new right of appeal, and a new jurisdiction, but it does not
take away the existing right of appeal from the Supreme Courts of the States direct to
the Privy Council. The latter right therefore remains in force ; and accordingly the
High Court, thoxigh a general court of appeal for Australia, is not the sole court of
appeal. (See Note, § 299, supra.)

The words "judgments" &c. " of the Supreme Court of any State" are not neces-
.sarily restricted to judgments of the " Full Court," or Court sitting Banco ; they may
apply to orders of the Court made by a single Judge. There may thus be in some cases
an alternative right of appeal from the decision of a Judge in a Court of first instance
either to the "Full Court" of the State or direct to the High Court. A similar
alternative appeal existed, before the establishment of the Constitution, from a Judge of
the Supreme Court of N.S. W. or Victoria, sitting in Equity, either to the " Full Court "
or to the Privy Council. (See Note, § 299, supra. )

§ 306. " Or of Any Other Court of Any State," &c.

The only court, other than the Supreme Court of a State, from which at the
establishment of the Constitution an appeal lies to the Privy Council, seems to be the
"Local Court of Appeal" in South Australia — an anomalous tribunal to which an

§§ 306-307.]

THE JUDICATURE. 743

appeal lies from the Supreme Court of South Australia, and from which an appeal lies to
the Privy Council. This Court was established bj' Act No. 31 of 1855-6, sec. 14, and
consists of the Governor and all the members of the Executive Council except the
Attorney-General. It has practically fallen into desuetude, but as it still exists, the
right of appeal from it to the Privj- Council was preserved.

"I propose this amendment merely because of the condition of things in our own
colonj', in which there is another Court of Appeal from which an appeal now lies to the
Privy Council, an intermediate Court of Appeal which is seldom availed of, but which
exists." (Mr. Svinon, Conv. I)eb.,Melb., p. 33"2.)

The Imperial Act 7 and 8 Vic. c. 69 provides (sec. 1) " That it shall be competent
for Her Majesty, by any order or orders to be from time to time for that purpose made
with the advice of Her Privy Council, to pro\-ide for the admission of any appeal or
appeals to Her Majesty in Council from any judgments, sentences, decrees, or orders of
any court of justice within any British colony or possession abroad, although such court
shall not be a court of error or a court of appeal within such colony or possession."

The orders made under this Act with respect to Australian colonies seem all to
have been limitetl to appeals " from any final judgment, decree, order, or sentence of
the Supreme Court " of a colony (see § 300, supra).

§ 307. "Of the Inter-State Commission, but as to
Questions of Law Only."

The Inter-State Commission is to have " such powers of adjudication and adminis-
tration as the Parliament deems necessarj' " for executing and maintaining the
constitutional provisions and federal laws relating to trade and commerce. (See Notes
to sec. 101.) So far as it is invested with powers of adjudication it will be in eflfect a
part of the federal judiciary ; and to prevent any exception being made to that uniform
interpretation of the law which it is the aim of the Constitution to ensure, an appeal
from its decisions on questions of law is given to the High Court. On the other hand,
the questions of fact which it will have to investigate are left to the final decision of the
Commission.

Law axd Fact.— The precise definition of " questions of law," and of its antithesis
*' questions of fact," is not easy ; for though the distinction between the two is broad and
fundamental, there is a region of " mixed questions " which partake of the nature of both.
Broadly speaking, a question of law is the question whether there is a rule of law which
governs certain ascertained circumstances ; a question of fact is the question whether, in
any particular case, those circumstances exist. (See Sweet, Dictionary of Law, sub. til.
" Fact.") The distinction, in English law, has been chiefly worked out in defining the res-
pective functions of the judge and the jury ; the recognized principle being that questions
of law are to be decided by the judge, questions of fact by the jury. In the case of the
Inter-State Commission the position is somewhat different ; the Commission is itself
both Judge and .Jury in the first instance ; but its decisions as a jury are final, whilst its
decisions as a judge are subject to review. It is conceived, however, that this
difference is immaterial, so far as the distinction between "law" and "fact" is
concerned, and that the phrase " question of law" in this section has precisely the same
signification as it has in the general law of evidence. For general discussions on this
subject, see Taylor on Evidence, § 26 ; Best on Evidence, §§ 80-82.

The admissibility of evidence is a question of law. (Taylor, § 23 ; Best, § 80.)
How far the Inter-State Commission, sitting as a judicial tribunal, will be bound by the
strict rules of evidence, is a matter of proceiiure to be determined bj" the Federal
Parliament ; but, whatever rules of evidence may be prescribed, it would seem that an
infringement of those rules, bj' the wrongful acceptance of inadmissible evidence, or
rejection of a<lmissible evidence, would be a good gi-onnd of appeal.

744 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

On the other hand, the weight or value of evidence is a question, not of law, but of
fact. (Taylor, § 25 a ; Best, § 80.) Where there is a conflict of evidence, it is the duty
of the jury to balance the evidence of the opposing witnesses, and to decide what the
facts of the case really are. The restriction of the right of appeal to " questions of law
only " prevents any decision of the Commission from being reviewed on the ground that
it is against the weight of evidence.

The question whether there is any evidence on which a verdict can properly be
given in favour of the party on whom the burden of proof lies — or, as it is sometimes
put, upon which a jury could «*• reasonable men find such a verdict— is a question of law.
(Taylor, § 25 a ; Best, § 82.) "Whether there be any evidence, is a question for the
Judge. Whether sufficient evidence, is for the jury." (Per BuUen, J., Carpenter's Co.
V. Hayward, 1 Dougl. 375. ) These propositions are perfectly consistent, though their
application may be difficult. The determination whether there is any evidence upon
which a verdict could reasonably be founded does not involve a balancing of the weight
of evidence ; on the contrary, it assumes that full weight must be given to the evidence
of the party — that the facts alleged by him are true ; and it is for the court, and not the
jury, to say whether, on that assumption, there is reasonable justification for a finding.

" As the decisions of tribunals on questions of fact ought to be based on reasonable
evidence, and when the facts are undisputed, the decision as to what is reasonable is
matter of law, and consequently within the province of the court— it follows that it is
the duty of the court to determine whether, assuming all the facts proved by the party on
whom the burden of proof lies to be true, there is any evidence on which the jury could
properly — i.e., without acting mireasonabW in the eye of the law — decide in his favour."
iBest, § 82.)

The most important application of these principles is in connection with the duty
cast on the Inter-State Commission (sec. 102) of deciding whether the facts which n\a,\
be proved before it constitute a " preference or.discrimination," or whether a preference
or discrimination is " undue and unreasonable, or unjust to any State," or whether
" due regard " has been had to the financial responsibilties of a State. All these are
" mixed cases," which it is rather hard— apart from authority — to classify as either
questions of law or questions of fact.

" If the question be whether a certain party had probable cause for doing an act, or
whether he has done an act within a reasonable time, or with due diligence, it is difficult
to say whether the definition of what constitutes probable cause, reasonable time, or due
diligence, be for the judge or jury, and specious arguments will not be wanting in favour
of the claims of either party. On the one hand, it may be said that these terms are as
capable of judicial interpretation as the words ' conversion ' or ' asportation,' which
must be clearly explained by the Judge ; while on the other hand it may be urged that
they seem rather addressed to the practical experience of practical men, than to the
legal knowledge of the lawyer ; that, being terms of degree, their meaning is subject to
indefinite fluctuation, according to the varying circumstances of each particular case,
and that consequently they defy all attempts to compress them within exact a priori
definitions." (Taylor on Ev. § 26.)

The authorities as to whether the reasonableness of conduct, imder any given
circumstances, is a question for the court or the jury, are somewhat conflicting ; but
the guiding principle seems to be that if the question is one on which the court is likely
to be more competent than the jury to form an opinion, it will be treated as a question
of law ; and vice verxa. Thus in an action for malicious prosecution, the question
whether, on the fact proved, there was probable canie for prosecution is a question for
the judge — who is assumed to be a more competent judge of the question than a jury.
So, as we have seen, the question whether there is reasonable evidence is a question for
the judge. On the other hand, in most actions, the reanonableness of the belief on which
the defendant has acted is a question for the jury. Questions of reasonable lime —
except in cases, such as the dishonour of a bill, where precise rules have been adopted as
to what is reasonable — are usually left to the jury ; as are also questions of reasonable
skill or care, due diligence, and gross negligence. (Taylor on Evidence, §§ 26-38.)

§307] THE JUDICAXrRE. 745

Whether "reasonableness"' is a question of law or a question of fact seems there-
fore to depend on the assumed competence of the tribunals to which questions of law
and fact are respectively assignetl. It may be said that this is a somewhat arbitrary
and unscientific test of classification ; but it must be remembered that all classifications
are more or less arbitrary ; and this classification has at least the merit of endeavouring
to assign each question to the most suitable tribunal.

Applying these principles to the Inter-State Commission, it is necessarj-to take into
consideration the special character of that body, and the purposes for which it is
constituted. The function of the Commission, in its judicial capacity, is to decide upon
a class of questions involving the consideration of an intricate multitude of facts, and
upon which a body of commercial experts are able to form a better opinion than a Bench
of judges. Accordingly it is contemplated that the Inter-State Commission will consist
of competent experts in the questions which will arise. It is a jury, but a jury of a
very special character ; a jury who are also judges — who are selected on account of their
competence, and are secured in their tenure of a responsible position. The spirit as well
as the letter of the Constitution would seem to indicate that the question whether a
preference or discrimination is " undue and unreasonable, or unjust to any State" — or
whether "due regard" has been had to the financial responsibilities of a State — are
questions on which the decision of the Commission is absolutely final.

This conclusion is supported by decisions under the English Railway and Canal Traffic
Acts, and the American Inter-State Commerce Act (see Notes, sees. 101, 102). The
English Railway and Canal Trafiic Act, 1888 (.51 and 52 Vic. c. 25, s. 17), provides an
appeal from the Railway and Canal Commission to the Court of Appeal, "but not on
any question of fact or locu^ stajidi.'' In Phipps v. London and N.W.R. Co. (1892) 2
Q B. 229, it was held that the question whether a preference was undue or unreasonable
was a question of fact for the Commission. (See also Palmer i*. London and S. W.R. Co.,
L.R. 1 C.P. 593 ; Denaby Main Colliery Co. v. Manchester, &c., R. Co., 14 Q.B.D. 209,
per Selbome, L.C.) "As there is nothing in the (Inter-State Commerce) Act which
defines what shall be held to be due or undue, reasonable or unreasonable, such questions
are questions not of law, but of fact." (Texas and Pac. R. Co. v. Inter-State Commerce
Commission, 162 U.S. at p. 219. And see Inter-State Commerce Commission v. Alabama
Midland R., 168 U.S. 145 ; and notes to sec. 102, infra.)

In two particular cases the judgment of the Commission is expressly made final.
If the Commission decides that a rate is not undue, unreasonable, or unjust (sec. 102),
that settles the question finally ; and if the Commission decides that anj' railway rate of
a State is "necessary for the development of the territory of the State," nothing in the
Constitution can render the rate unlawful. It does not appear, however, that the
mention of these two cases raises any presumption that an appeal lies in other cases not
mentioned. These two provisions were inserted, not so much to prevent an appeal to
the High Court, as to provide a tribunal independent of the Parliament ; their object
was to guard against the decision of a judicial question by a political body. They are so
absolute in terms that they clearly make the opinion of the Commission, in these cases,
final ; but they do not seem to raise any presumption which would affect the
interpretation of the words "questions of law."

But although the questions of what is unreasonable, what is unjust, what is undue,
are for the Inter-State Conmiission alone, the interpretation of such words as "preference "

and "discrimination " — like the interpretation of any other words in the Constitution

involves a question of law. The question whether the proved facts constitute a
preference or discrimination, within the meaning of the Constitution, would seem to be
wholl}' a question of law ; though, if a preference or discrimination were held to exist
its reasonableness or unreasonableness would be a question of fact.

" Questions of law " include questions arising not onlj- upon the laws of the
Commonwealth, but upon the laws of the States. It may be that in the Courts of a
State (and even on appeal from the Courts of that State) the laws of another State may

746 COMMENTARIES ON THE CONSTITUTION. [Sec. 73.

have to be proved as matters of fact (see Notes to sec. 118) ; but it is clear that tlie
Inter-State Commission, having the duty not only of executing — and in the first instance
interpreting — the Constitution and the laws of the Commonwealth, but also of adjudi-
cating upon the '• laws and regulations " of the States, must act as judicial interpreters
of the latter as well as of the former. On the same principle it has been decided in the
United States that the federal courts, in the exercise of their original jurisdiction, take
judicial notice, without proof, of the laws of all the States. (Chicago and Altoi^ R. Co.
V. Wiggins Ferry Co., 119 U.S. 615.)

§ 308. "Final and Conclusive."

The words " final and conclusive " mean, primarilj' and generally, that there is no
appeal. (Waterhouse v. Gilbert, 15 Q.B.D. 569 ; Bryant v. Reading, 17 Q.B.D. 128 :
Lyon V. Morris, 19 Q.B.D. 139.)

A right of appeal may mean one of two things : the right of a party to claim an
appeal to a higher court ; or the right of a higher court to grant leave to appeal. In
the case of the High Court, the only higher court of which there is any question is the
Queen in Council ; so that the discussion of rights of appeal from the High Court resolves
itself into (1) the right of a party to claim an appeal to the Queen in Council ; (2) the
prerogative right of the Queen to grant leave of appeal to herself in Council.

Appeal as of Right. — An appeal as of right can onl}' be created by statute ; and
i the words of this section expressly negative the existence of such an appeal.

" The creation of a new right of appeal is plainly an act which requires legislative
authority. The Court from which the appeal is given, and the Court to which it is given,
must both be bound, and that must be the act of some higher power. It is not competent
to either tribunal, or to both collectively, to create any such right. Suppose the Legis-
Uiture to have given to either tribunal, that is, to the Court of the First Instance, and
to the Court of Error or Appeal respectively, the fullest power of regulating its own
practice or procedui-e, such power would not avail for the creation of a new right of
appeal, which is in effect a limitation of the jurisdiction of one Court and an extension
of the jurisdiction of another." (Per Westbury, L.C., Att.-Gen. v. Sillem, 10 H.L.C.,
p. 720. See also Mayor of Montreal v. Brown, 2 App. Ca. 174, 184.

It has been held by the Privy Council in Canadian cases that the words " final and
conclusive," or the word "final" only, are apt words, even in a Canadian statute, to
take away an appeal " as of right" to the Queen in Council, and to prevent the Court of
Appeal in Canada from granting leave to prosecute such appeal. In Cushing v. Dupuj'
(5 App. Ca. 409), it was held that a provision in a Dominion Act that the judgment of
the Court of Appeal in matters of insolvency should be " final," excluded appeals '"as
of i-ight " to the Privy Council, though it did not take away the Queen's prerogative
right to grant leave of appeal. Sir Montague E. Smith, in the course of delivering the
judgment of the Privy Council, said (at p. 416) : —

" Then it was contended that if the Parliament of Canada had the power, it did
not intend to abolish the right of appeal to the Crown. It was said that the word
' final ' would be satisfied by holding that it prohibited an appeal to the Supreme Court
of Canada, established by the Dominion Act of the 38 Vic. c. 11. Their Lordships think
that the effect of the word cannot be so confined. It is not reasonable to suppose that
the Parliament of Canada intended to prohibit an appeal to the Supreme Court of
Appeal recently established by its own legislation, and to allow the right of immediate
appeal from the Court of Queen's Bench to the Queen to remain. Besides tlie word
' final ' has been before used in colonial legislation as an apt word to exclude in certain
cases appeals as of right to Her Majesty. (See the Lower Canada Statute, 34 Geo. III.,
c. 30.) Such an efltect may, no doubt, be excluded by the context, but there is none in
the enactment in question to limit the meaning of the word. For these reasons their
Lordships think that the Judges below were right in holding that they had no power to
grant leave to appeal." (See also Johnston v. Minister of St. Andrew's Church, Montreal,
3 App. Ca. 159.)

Appeal as of Grace.— The law however is clear that the Queen's prerogative to

' entertain appeals from colonial courts (see Note, § 310, ivfra) cannot be taken away

without express words. Cuvillier v. Aylwin, 2 Knapp 72, which seems an authority to

§§308-309.[ THE JUDICATURE. 747

the contrary effect, was questioned in Re Louis Marois, 15 Moore P.C. 189, and may
be considered as overruled on that point. The true principle was laid down clearly in
an Indian case, Modee Kaikhooscrow Hormusjee v. Cooverbhaee, 6 Moo. Ind. App. 448,
and is now well established (see Theberge v. Laudry, 2 App. Ca. 102 ; Johnston v.
Minister of St. Andrew's Church, Montreal, 3 App. Ca. 159). The authorities are
reviewed in Cushing v. Dupuy, 5 App. Ca. 409 (cited above) when Sir Montague E.
Smith, delivering the judgment of the Privy Council, after holding that the appeal as of
right was taken awaj-, went on to sa\' (p. 416) : — " The question of the power of the
Queen to admit the appeal, as an act of grace, gives rise to different considerations. It
is, in their Lordships' \new, unnecessary to consider what powers may be possessed by
the Parliament of Canada to interfere with the royal prerogative, since the 28th section
of the Insolvency Act does not profess to touch it ; and they think, upon the general
principle that the rights of the Crown can only be taken away by express words, that
the power of the Queen to allow this appeal is not affected by that enactment."

The Canadian Act establishing the Supreme Court (38 Vic. c 2, sec. 47) provides
that its judgments shall be " final and conclusive, saving anj' right which Her Majesty
maj' be graciously pleased to exercise by virtue of Her Royal prerogative." In Johnston
v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, no attempt was made
to argue that the savnng words preserved anything more than the appeal as of grace.

§ 309. " The Conditions of and Restrictions on Appeals."

By " conditions of appeals " seems to be meant the conditions or requirements which
have to bo satisfied before an appeal is admitted, the terms on which leave will be given,
and the terms on which its prosecution will be allowed ; by "restrictions on appeals,"
the limitations as to the judgments from which an appeal will lie, the appealable
amount, the time for appealing, and so forth. Both expressions, from different points
of view, must at least be construed to extend to so much of the rules and practice of the
several Supreme Courts and of the Privy Council as go to the questions whether leave to
appeal can be given, on what terms it ought to be given, and subject to what conditions
it ought to be prosecuted. How far the words incorporate the rest of the existing
practice and procedure of Privy Council appeals may be a matter of some doubt ; but it
would certainly be prudent on the part of litigants to conform to that practice in every
possible waj'.

The effect of the provision is practically to adopt, as a piece of preliminary federal
legislation, separate codes of rules to govern appeals to the High (.^ourt from each State.
As a matter of fact, these separate codes are to a great extent identical, so that there
will from the outset be a considerable degree of uniformity ; but complete uniformity
can only be secured by federal legislation.

The Parliament has power, under this section, to prescribe exceptions to, and
regulations for. the right of appeal. By virtue of the words " until the Parliament
otherwise provides," it has also (sec. 51 — xxxvi.) power to legislate as to " conditions of
and restrictions on appeals ;" but the latter power seems to be wholly included in the
former. The Parliament also has (sec. 51 — xxxix.) power to legislate on matters
incidental to the execution of any part of the judicial power. It therefore has full power
to regulate the right of appeal, both by direct legislation, and by empowering the Judges
of the High Court to frame rules of practice and procedure.

In the meantime, appeals from the Supreme Court of any State to the High Court
will be subject, under this section, to the same "conditions and restrictions" as appeals
from such Court to the Privy Council. For information as to these, the reader is
referred to Macpherson's Practice of the Privy Council, and to the text-books on the
practice of the Supreme Courts in the several colonies.

748 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

Appeal to Queen in CounciP^°.

74, No appeal shall be permitted^^^ to the Queen in
Council from a decision of the High Court^^^ upon any
question, howsoever arising^^^, as to the limits inter se of the
Constitutional powers^^^ of the Commonwealth and those of
any State or States, or as to the limits inter se of the Consti-
tutional powers of any two or more States, unless the High
Court shall certify^^^ that the question is one which ought to
be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any
special reason the certificate should be granted, and there-
upon an appeal shall lie to Her Majesty in Council on the
question without further leave.

Except as provided in this section, this Constitution
shall not impair any right which the Queen may be pleased
to exercise by virtue of Her Royal prerogative^^^ to grant
special leave of appeal from the High Court to Her
Majesty in CounciP^^ The Parliament may make laws
limiting the matters in which such leave may be asked^^^, but
proposed laws containing any such limitation shall be reserved
by the Governor-General for Her Majesty's pleasure^^''.

Canada. —The judgment of the Supreme Court shall in all cases be final and conclusive, and no
appeal shall be brought from any judgment or order of the Supreme Court to any court of
appeal established by the Parliament of Great Britain and Ireland, by which appeals or
petitions to Her Majesty in Council may be ordered to be heard ; saving any right which
Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative.—
Dominion Statute, 38 Vic. c. 2, sec. 47 (establishing Supreme Court).

Historical Note. — The Commonwealth Bill of 1891 provided that the Federal
Parliament might require that anj^ appeals Avhich have hitherto been allowed from the
State Courts to the Queen in Council should be brought to the Federal Supreme Court.
The judgment of the Supreme Court was to be final, but the Queen was to have some
power to grant leave of appeal to her.self " in any case in which tlie public interests of
the Commonwealth, or of any State, or of any other part of the Queen's dominions, are
concerned." The limitation of the prerogative right to grant leave of appeal was
objected to by Mr. Wrixon, who moved the omission of the words, but the amendment
was negatived on division. (Conv. Deb., Syd., 1891, pp. 785-7 [and see Historical
Note, sec. 73].)

Adelaide Session, 1897 (Debates, pp. 968-89, 1202).— The clause as framed at the
Adelaide Convention prohibited any appeal to the Privy Council, either from the State
Courts or the federal Courts, " except that the Queen may, in any matter in which the
public interests of the Commonwealth, or of any State, or of any other part of Her
Dominions, are concerned, grant leave of appeal to the Queen in Council from the High
Court." This meant that appeals from the State Courts direct to the Privy Council
were to be abolished altogether ; that there was to be no appeal " as of right " from the
High Court to the Privy Council ; and that the Queen's right to grant leave of appeal
was to be limited to the cases specified.

THE JUDICATURE. 749

A proposal by Sir George Turner to omit the words " in any matter in which the
public interests, &c. . . . are concerned," and so leave a right to grant leave of
appeal in all cases, was negatived by 17 votes to 14. A general debate on the clause
followed. Sir Edward Braddon and Sir Joseph Abbott appealed strongly for the
retention of an appeal to the Privy Council, on the grounds that this was one of the
last links with the Empire, that it represented the right of the people of Australia to
approach the throne, and that the decisions of the Privy Council would command greater
respect than those of the High Court. On the other hand, Mr. Symon and Sir John
Downer led the argument in favour of a final federal court of appeal. The clause was
eventually carried by 22 votes to 12.

Melbourne Session, 189S (Debates, pp. 333-48, 2286-2341, 2415-9 ; 2453-6).— A
suggestion by the Legislative Councils of New South Wales and Victoria to omit (in the
preceding section) the words making the judgment of the High Court " final and
conclusive " was negatived (Debates, p. 333). No one attempted to argiie that there
should be an appeal from the High Court to the Privy Council "as a matter of right,"
and the retention of these words embodied the decision of the Convention that —what-
ever right might be reserved to the Queen (i.e., the Privy Council), to grant leave of
of appeal "as of grace " — the parties should have no absolute right of appeal.

Sir George Turner, however, while not wishing to make the right of appeal to the
Privy Council absolute, wished to vest in the High Court itself, as well as in the Queen
in Council, a power to grant leave of appeal ; and accordingly he moved to add, after
" final and conclusive,"' the words "saving in cases where an appeal may be allowed
either by the Queen in Council or the High Court." Mr. Wise proposed to amend this
suggestion so as to read ' ' saving any right which Her Majesty may be graciously
pleased to exercise by Wrtue of Her royal prerogative " — thus placing the prerogative
right of granting leave to appeal on the basis of the Canadian Act of 1875. Mr. Symon
opposed this, and wished to take away the prerogative right altogether, on the ground
that the Privy Council, as a court of appeal for the colonies, was "an anachronism and
an absurdity."

Mr. Wise's amendment of Sir George Turner's proposal was agreed to, but when
the amended proposal was put to the vote it was easily defeated (pp. 333-47). All these
proceedings took place in connection -with the words "final and conclusive" in the
precetling clause. The " Appeals to Privy Council" clause was immediately afterwards
passed without amendment ; so that the result was that at this stage the question of
appeal was left precisely as it had been at Adelaide. (Conv. Deb., Melb., pp. 333-48.)

The whole question came up again on recommittal after the second report (pp. 2286-
2341). Sir Joseph Abbott moved again that after "final and conclusive" (in the
preceding section) should be added the words "saving any right that Her Majesty
may be pleased to exercise by virtue of Her royal prerogative." The whole question of
appeal to the Privy Council was debated over again, the argument in its favour being
now supported by a number of petitions from various Chambers of Commerce and
Manufactures, and other associations representing mercantile interests. Mr. Symon
again led the opposition to the amendment, while Mr. Carruthers supported it. Mr.
O'Connor pointed out that the question was not that of abolishing appeals to the Privy
Council, because the following clause expressly allowed them in certain cases ; it was a
question of limiting them. He could see no consistency in the limitation as it stood,
because it allowed an appeal to the Privy Council in the very cases which were specially
of a kind to be finally decided in Australia — cases, namely, in which the interpretation
of the Constitution was involved ; and he armounced himself ready to support a
proposition to the eflFect that no appeal to the Privy Council should be allowed in those
cases ; a suggestion which Mr. Kingston also heartily approved. (For an earlier
suggestion to the same eflFect, see a paper read by Mr. R. R. Garran before the Austral-
asian Association for the Advancement of Science, Proceedings, 1895, p. 694.)
Eventually, Sir Joseph Abbott's amendment was carried by a majority of one. A

750 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

proviso was then added, on Mr. Symon's motion, "that the right saved is that of
granting leave to appeal, and shall continue only until Parliament otherwise provides."

The above debate was on the preceding section. On the consideration of this
section (" Appeals to Queen in Council ") Sir Joseph Abbott moved the omission of the
limiting words " in which the public interests .... are concerned." This was
agreed to without division ; and then Mr. Symon proposed to insert, in place of the
words omitted, " not involving the interpretation of the Constitution of the Common
wealth or of a State." This, at Mr. Barton's suggestion, was amended by adding the
words " or in any matter involving the interests of any other part of Her Majesty's
dominions ;" the intention being to allow an appeal in every case in which some other
part of the British dominions was concerned, notwithstanding that the interpretation
of the Constitution of the Commonwealth or of a State might be involved. Aftei-
debate, Mr. Symon's amendment, as amended, was carried by a majority of four.
(Conv. Deb., Melb., pp. 2325-35.)

Mr. Symon next moved an amendment providing " that no appellant to the High
Court shall afterwards appeal to the Privy Council in the matter of the same appeal,"
the intention being that when an appellant had elected to go to the High Court instead
of to the Privy Council direct, he should be bound by its decision ; though the
respondent, who had had no right of election, might appeal from the decision. There was a
strong feeling in the Convention that some such provision would be desirable ; but
finally, on the suggestion that the Drafting Committee should endeavour to carry out
this idea, Mr. Symon withdrew his amendment. No such provision, however, was
afterwards incoi-porated in the Bill. (Conv. Deb., Melb., pp, 2336-41.)

On recommittal after the third report, Mr. Barton brought up the redraft of the
Drafting Committee. Mr. Glynn then moved a further amendment in order to prevent
appeals direct from a State Court to the Privy Council, to preserve the prerogative right
of appeal to the Privy Council in all cases — whether constitutional or not - and to
prevent that right from being cut down by the Parliament. This was negatived on
division by a majority of three. (Conv. Deb., Melb., pp. 2415-22.) Some final drafting
amendments were made after the fourth report.

Imperial Parliament. — In the Bill as introduced into the Imperial Parliament, clause
74 was omitted altogether, and in covering clause 5 were inserted words preserving the
prerogative of appeal with respect to all decisions of the High Court and of the Supreme
Courts of the States. (See pp. 242, 346, xupra.)

To meet the protests of the Delegates, Mr. Chamberlain afterwards proposed a new
clause allowing an appeal from decisions of the High Court on questions as to "the
limits inter se of the constitutional powers " of the Commonwealth and the States, or of
any two or more States. (See p. 245, supra. ) To meet criticisms from the Delegates
and from Australia, this clause was subsequently redrafted. (See p. 247, Kupra. ) Finally,
the clause as it now stands was suggested by .\lr. Chamberlain, and agreed to by the
Governments of the colonies ; and in Committee the Bill was amended accordingly.
(See pp. 247-9, ■s^lpra.)

§ 310. '* Appeal to Queen in Council."

The Prkkogative Right. — The preceding section negatives any right of litigants
in the High Court to claim an appeal to the Queen in Council " as a matter of right,"
and what is dealt with in this section is the prerogative right of the Crown, through tlie
Judicial Committee of the Privy Council, to grant "special leave of appeal," as a matter
of grace.

"The Queen has authority, by virtue of her prerogative, to review the decisions of
all colonial courts, whether the proceedings be of a civil or criminal character, unless
Her Majesty has parted with such authority." (Falkland Islands Co. v. Queen. 1 Mou.
P.C.N.S. 312 ; and see Reg. v. Bertrand, L.R. 1 P.C. 520; Macpherson, P.C. Practice,
p. 60 ; Todd, Pari. Gov. in Colonies, p. 220.)

§ 310.1 THE JUDICATURE. 751

The ancient right of the King, as the fountain of justice, to dispense justice in hi>
Council survived even after the establishment- of Courts of Common Law. (See Anson,
Law of Constitution, ii. 86.) In 1640 the Long Parliament, by the Act 16 Car. I c. 10,
which abolished the Star Chamber, enacted that neither the King nor his Privy Council
should have jurisdiction over any man's estate, but that "the same ought to be tried
and determined in the ordinary courts of justice, aud by the ordinary course of the law."
But the King in Council, though his original jurisdiction ^rithin England was taken
away, was still the resort of suitors in the dependencies, and continued to hear petitions
from the plantations. The result was that down to 1833 all petitions from beyond the
seas were dealt with •' by an open Committee of the Privy Council, which advised the
Crown as the order to be made in each case." (Anson, Law of Const, ii. 442.)

The .Jcdicial Committee.— In 183.3, by the Act 3 and 4 Wm. IV. c. 41, the
Judicial Committee of the Privy Council was constituted, and it was enacted (sec. 3)
that "all appeals or complaints in the nature of appeals which either by virtue of this
Act or of any law statute or custom may be brought before His Ma jest}- or His Majesty
in Council " from the decision of any Court or Judge should thenceforth be referred to
the Judicial Committee. It was also enacted (sec. 4) that His Majesty might refer to
the Judicial Committee " any such other matters whatsoever as His Majesty shall think
fit." The Judicial Committee was also given various necessary- powers of a Court of
Justice, with regard to the examination of witnesses, compelling their attendance,
making rules of practice, and so forth.

The composition of the Judicial Committee has been the subject of statutory change
from time to time. It now consists of the Lord President, such Privy Councillors as
hold or have held " high judicial office " (defined to mean the oflfice of Lord Chancellor,
of a paid Judge of the Judicial Committee, or of a Judge of one of the Superior Courts
of Great Britain and Ireland), the Lords Justices of Appeal, and two other persons
being Privy Councillors whom the Queen may appoint. There may also be one or two
paid members, who have held judicial office in the East Indies. (See Appellate
Jurisdiction Acts, 1876 and 1887, 39 and 40 Vic. c. 59 ; 50 and 51 Vic. c. 70 ; Judicial
Committee Act, 1881, 44 and 45 Vic. c. 3.) It is now proWded by the Judicial Committee r
Amendment Act, 1895 (58 and 59 Vic. c. 44), that if any person being or having been /
Chief Justice or a Judge of the Supreme Court of Canada, or of a Supreme Court in any
provincg^oTCanacIajjorofany^f the Australasian Colonies, or of Cape Colony or Natal, v
or of any other Superior Court in the Queen's Dominions which might be named by
Order in Council, is a member of the Priv\' CounciU he shalLbe^ member of the Judicial (
Committee ; but such colonial members of the Judicial Committee must noiexceed five.

Although the Acta relating to the Judicial Committee require the Queen's prerogative
right of admitting appeals to be exercised through a particular court, of definite statutory
composition, they do not limit the extent of that prerogative right. It is however
capable of being limited to any extent, or of being abolished altogether, by the sovereign
British Parliament, whose sovereignty extends to the prerogative as to everything else.
(See Dicey, Law of the Const., p. 60.) "The prerogative appears to be, both historically
and as a matter of actual fact, nothing else than the residue of discretionary or arbitrary
authority, which at any given time is legally left in the hands of the Crown." (Id..
p. 352. ) To say that the right of granting leave to appeal to the Queen in Council is a
" prerogative right " is therefore merely to .say that it has not yet been legallj' taken
out of the hands of the Crown.

This prerogative right of the Crown is sometimes spoken of, somewhat inaccurately,
as a sacred constitutional right of the indi\-idual subject. See for instance a petition
presented to the Melbourne Convention (cited Con v. Deb., Melb., p. 2298), where it is
spoken of as " this right of approach to the Sovereign which all her other subjects (i.e.,
other than Australian) possess." Language such as this is due to a confusion of the
right of appeal with the general right of petitioning the Crown for the redress of
grievances — a right which belongs to every subject in every part of the Empire, and is

752 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

not taken away bj' limiting the right ot appeal in matters of litigation. (See Blackstone's
Commentaries, i. 143.) The right of appeal to the Privy Council is not in any sense a
right of approaching the person of the Sovereign, but merely a right of appealing to one
of the Queen's Courts — a Court which is not a Court of Appeal for the whole Empire,
but only for the colonies and dependencies of the Empire. See remarks on this subject
by Mr. Symon (Conv. Deb., Melb., pp. 2295, seqq). The extent to which a right of
appeal to the Queen in Council ought to be retained is purely a question of political
expediency.

Limitations Prkscribed by Privy Couxcil.— Though the right of the Queen to
grant leave to appeal to herself in Council has not hitherto been legally limited, very
definitejimitations as to the^ases in which such leave will be granted have been laid
down by the Privj' Council itself. Thus in criminal casesT^leave will only be granted in
SpeciaTcTrcumstances, where it is shown that by a disregard of the forms of legal process,
or by some violation of the principles of natural justice, or otherwise, substantial and
grave injustice has been done. (Reg. v. Bertrand, L.R. 1 P.C. 520 ; lie Dillet, 12 App.
Ca. 459 ; Exp. Deeming, 1892, App. Ca. 422 ; Kops v. Reg., 1894, App. Ca. 650 ; Exp.
Carew, 1897, App. Ca. 719.)

In applications for special leave to appeal to the Queen in Council from decisions of
the Supreme Court of Canada, or of the Courts of Appeal in the Provinces, the Privy
Council has laid down limitations which had an important influence on the Convention in
determining the provisions of this section, and which are further of importance as lading
down rules which will undoubtedly guide the Privy Council in the exercise of the right
to grant special leave under this Constitution.

In Johnston v. Ministers of St. Andrew's Church, Montreal, 3 App. Ca. 159, special
leave of appeal from the Supreme Court of Canada was refused in a case where the
amount at issue was only £300, and where the issue between the parties related simply
to the legal construction and effect of a particular contract, and where no general
principle was involved, and no other cases were necessarily affected by the decision
complained of. The judgment of Lord Cairns, L.C., concluded as follows : —

" It appears to their Lordships that it would be a departure from the principles
which should guide them when advising Her Majesty as to when an appeal should be
allowed, to advise that an appeal should be allowed merely for the purpose of testing
the accuracy of the construction put upon a particular document, which document, if it
aifects any number of other cases, can be altered at the will of the party who asks for
the exercise of the prerogative in allowing an appeal. Their Lordships, tlierefore.
cannot, either from the magnitude of the particular case, or from the effect which this
decision may have on a number of other cases, think that this is a case in which they
should ad\'ise Her Majesty to allow the appeal which is asked for."

In Valin v. Langlois, 5 App. Ca. 115, an important constitutional question was
involved as to the validity of a Dominion Act ; but special leave to appeal from two
concurrent judgments of the Courts in Canada, affirming the validity of the Act, was
refused, it appearing that there was no substantial question to be decided, nor any
doubt of the soundness of the decisions, nor any reason to apprehend difficulty or
disturbance from leaving the decisions untouched. Lord Selbome, delivering the
judgment of the Court, said (at p. 117) : —

" Their Lordships must remember on what principles an application of this sort
should be granted or refused. It has been rendered necessary, bj' the legislation which
has taken place in the colony, to make a special application to the Crown in such a ease
for leave to appeal ; and their Lordships have decided on a former occasion that a special
application of that kind should not be lightly or very easily granted ; that it is necessary
to show both that the matter is one of importance, and also that there is really a
substantial question to be determined. It has been already said that their Lordships
have no doubt about the importance of this question, but the consideration of its
importance and the nature of the question tell both ways. On the one hand those
considerations would undoubtedly make it right to admit an appeal, if it were shown to
their Lordships, prima facie at all events, that there was a serious and a substantial
• jueation requiring to be determined. On the other hand, the same considerations make

4§ 310 311.] THE JUDICATURE. 753

it unfit and inexpedient to throw doubt upon a great question of constitutional law in
Canada, and upon a decision in the Court of Appeal there, unless their Lordships are
satisfied that there is, prima facie, a serious and substantial question requiring to be
determine<l. Their Lordships are not satisfied in this case that there is any such
question, inasmuch as they entertain no doubt that the decisions of the Lower Courts
were correct. It is not to be presumed that the Legislature of the Dominion has
exceeded its powers, unless upon grounds reallj" of a serious character."

In Prince v. Gagnon, 8 App. Ca. 10.3, which was a suit involving a question of a sum
of £1000, Lord Fitzgerald, delivering the judgment of the Court, said : —

" Their Lordships, ha^nng looked into the case, see that it involves nothing what-
ever beyond this £1000. There is no grave question of law or of public interest involved
in its decision that carries with it any after-consequences, nor is it clear that Ijeyond the
litigants there are anj- parties interested in it. . . . Their Lordships are not preparetl to
advise Her Majesty to exercise her prerogative by admitting an appeal to Her M ajesty in
Council from the Supreme Court of the Dominion, save where the case is of gravity
involving matter of public interest or some important question of law, or affecting
property of considerable amount, or where the case is otherwise of some public
importance or of a very substantial character."'

In Montreal v. Ecclesiastiques de St. Sulpice, 14 App. Ca. 660, the unwillingness of
the Privy Council to grant special leave was still further illustrated. Lord Watson,
delivering judgment, referred to the provision of the Canadian Supreme Court Act, that
the decision of the Court should be " final and conclusive," saving the Queen"s preroga-
tive, and declined to formulate any general rule as to when leave to appeal would be
given. " In some cases," he said, "as in Prince i*. Gagnon [supra^ their Lordships have
had occasion to indicate certain particulars, the absence of which will have a strong
influence in inducing them to ad^^se that leave should not be given, but it by no means
follows that leave will be recommended in all cases in which these features occur. A
case may be of a substantial character, may involve matter of great public interest,
and may raise an important question of law, and yet the judgment from which leave to
appeal is sought may appear to be plainlj' right, or at least to be unattended with
sufficient doubt to justif}' their Lordships in ad\nsing Her Majesty to grant leave to
appeal." (See, for these and other cases in which special leave was granted or refused,
Wheeler, Confed. Law, pp. 440-482 ; Wheeler, Pri^•3- Council Law, Part II.)

§ 311. " No Appeal shall be Permitted."

These words area limitation of the Queens prerogative right to admit appeals from
any colonial court. Such a limitation is within the competence of the Imperial Parliament.
(Dicey, Law of the Const., p. 60 ; and Notes, supra, § 310.)

The prohibition is directed against appeals by special leave of the Privy Council.
Appeals as of right from decisions of the High Court are already taken away by the
provision of sec. 73 that the judgment of the High Court shall be " final and conclusive "
(see Note, 308, supra). The prohibition is limited —

(1) to appeals from decisions of the High Court ;

(2) to appeals upon questions as to the limits inter >ie of the constitutional

powers —

(a) of the Commonwealth and those of any State or States ; or

(b) of any two or more States ;

(3) by the qualification that an appeal will lie " if the High Court shall certify

that the question is one which ought to be determined by Her Majesty
in Council "

The limited extent of the prohibition against appeals to the Privy Council is
confirmed by the concluding paragraph of the section, which expressly saves the roj'al
prerogative to grant special leave of appeal " except as provided in this section."
Accordingly the prerogative right of the Queen in Council to grant special leave to
appeal from judgments of the State courts is not affected by the Constitution ; and the

754 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

right of appeal from the Supreme Courts of the States, under the Orders in Council, in,
matters over the appealable amount — a right which is derived from statute, not fronv
prerogative— is of course also untouched. (See Notes, §§ 299, .300, supra.}

§ 312. " From a Decision of the High Court."

Decision. — For the meaning of the words " decision upon any question," see Note,
§ 313, infra.

Of the High Court. — The section as it stands differs from the Bill as adopted by
the Convention in not forbidding appeals from the State Courts to the Privy Council on
constitutional questions. The clause as orginally drafted by the Judiciary Committee at-
the Adelaide session began: — "No appeals shall be allowed to the Queen in Council
from any court of a State, or from the High Court, or any other federal court, except,'"
&c. As redrafted at the Melbourne session, after the third report, and adopted at tha
fourth report, it began : — "Notwithstanding anj'thing in the last section, an appeal to
the Queen in Council from a court of a State, or from' the High Court, or from any
other federal court, shall not be allowed in any matter," kc. Before the final stage, it
was redrafted to read : — " No appeal shall be permitted to the Queen in Council in any
matter," &c. There was certainly no intention on the part of the Convention to limit
the clause to appeals from the High Court, the general words "no appeals shall be-
permitted " being understood to include appeals from all courts. State or federal.

In some quarters, however, the cause was understood as referring to appeals from
the High Court alone ; and Mr. Chamberlain's first proposed compromise (p. 245,
supra), providing that no question as to the limits of constitutional powers should be-
" capable of decision except by the High Court," was objected to by Sir Samuel Griffith,
amongst others, on the ground that this was a substantial alteration of the Bill, and a.
curtailment of a right of appeal from the State (;!ourts to the Privy Council which had
been expressly reserved by the Convention. The Chief Justices of all the Australian
colonies, being consulted by Mr. Chamberlain, seem to have expressed opinions adverse-
to any curtailment of the right of appeal from the State courts to the Privy Council ;
and as a consequence of these representations the clause as finally passed by the Imperial
Parliament left this right untouched.

The Convention, therefore, meant that on constitutional questions the High Court
should be the sole, as well as the final, court of appeal ; but under the Constitution as it
stands, any judgment of the Supreme Court of a State may, even if it involves consti-
tutional questions, be appealed from to the Privy Council direct ; though, if the
appellant chooses to adopt the alternative of appealing to the High Court instead of to
the Privy Council, there can be no further appeal to the Privy Council unless the High
Court certifies that such an appeal is proper.

This result does not appear to be altogether satisfactory. Whatever view maj' be
taken of the expediency of retaining a right of appeal to the Privy Council in consti-
tutional questions, it would at least seem tliat the Privy Council ought not to be
required to decide any such question without having, for its assistance, the judgment of
the highest Court in Australia. As it is, the decision of the High Court on a certain
class of constitutional questions is final, unless the High Court certifies, for special
reasons, that an appeal ought to be allowed to the Privy Council ; but if any such
question arises in a Supreme Court of a State, an appeal may be had direct to the Privy
Council, passing bj' the High Court altogether. There is thus a lack of unity in the
system of interpreting the fundamental law of the Commonwealth. There is also a lack
of consistency ; the principle that the interpretation of the Constitution, as between
Commonwealth and State, ought to rest with the Australian courts, is affirmed by the
provision which makes the decision of the High Court in such cases ordinarily final, and
denied by the reservation of the full right of appeal from the State courts to the Privy
Council.

§§ 312-3! 3.]

THE JUDICATURE. 755

This anomaly, however, can, if inconvenience is found to arise, be removed in eithei
of two ways — by the Imperial Government, or by the Federal Parliament. The
statutory right of appeal from the State Courts to the Privy Council is defined by the
Orders in Council already cited (§ .300, supra); and it is competent at any time for the
Queen in Council (i.e., the Imperial Government) to promulgate new orders, abolishing
this right of appeal in questions as to the limits of constitutional powers. If that course
should not commend itself, the Federal Parliament has power to deal with the matter in
another way. Under sec. 76, the Parliament may confer original jurisdiction on the
High Court in several classes of cases, including " cases arising under this Constitution,
or involving its interpretation." Under sec. 77, it can confer a similar jurisdiction on
any federal court other than the High Court, and can declare the jurisdiction of any
federal coiirt (including the High Court), to be exclusive of that belonging to the courts
of the States. The Federal Parliament can therefore, by making the federal jurisdiction
exclusive in cases arising under the Constitution, ensure that all such cases shall be
brought in the first instance into the federal courts, when they vrill of course be subject
to the exclusive appellate jurisdiction of the High Court. That is to say, the Federal
Parliament — though it cannot interfere with the right of appeal from the Supreme
Courts of the States to the Privj' Council— can under sec. 77 reserve to the federal courts
exclusive original jurisdiction in cases "arising under the Constitution," and thus
prevent such cases being brought in the courts of the States.

>; 313. ** Upon any Question, Hoivsoever Arising."*

Decision' upon a Qcestiox. — The appeals forbidden by this section are appeals
"from a decision of the High Court upon any question" ol a certain character. The
distinction should be noted between the phrase " decision of the High Court " in this
section and the phrase " judgment of the High Court " in sec. 73. A judgment of the
court is its order upon a case ; a decision of the court is its finding upon a question of
law or fact arising in a case A decision upon a question is not of itself a judgment, but
is the basis of a judgment ; and one judgment may be based on the decision of several
questions.

This section, then, forbids not an appeal from a judgment, but an appeal from the
decision of a question. Where a judgment is Ijased upon the decision of several questions,
one of which is a question as to the limits of constitutional powers, the section does not
forbid the Privy Council to grant special leave of appeal from the judgment ; what it
does is to forbid the Privy Council from disturbing the decision of the High Court on
that particular question. It may be that, apart from the constitutional question, there
are other questions of law or of fact which the Privj- Council may hold to have been
erroneously decided by the High Court, and which are material to the judgment. The
Privy Council has power to deal with the whole matter, except that it cannot disturb
the decision of the High Court on the constitutional question unless the High Court has
ertified that the question ought to be determined by the Privy Council.

American Analogy. — The provision, which denies to the Privy Council the power
of "independent interpretation" of the limits of the constitutional powers of the
Commonwealth and the States, bears an interesting analogy to the doctrine laid down
by the fedei-al courts in the United States, that those courts have no right of
"independent interpretation" of State Constitutions and laws unless national rights or
authorities are affected.

" The same reasons which require that the final decision upon all questions of
national jurisdiction should be left to the national courts will also hold the national
courts bound to respect the decisions of the State courts upon all questions arising uuder
the State Constitutions and laws, where nothing is involved of national authority, or of
right under the Constitution, laws, or treaties of the United States ; and to accept the
State decisions as correct, and to follow them whenever the same questions arise in the
national Courts." (Cooley, Const. Lim. p. 13 ; and see Burgess, Pol. Sci. ii. 3'28.)

756 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

This Constitution draws no such distinction as between the States and the
Commonwealth. The fact that the High Court is made a general court of appeal
implies a right of " independent interpretation" of State Constitutions and laws. Biit
as between the Empire and the Commonwealth — that is, as between the Privy Council
and the High Court — the right of "independent interpretation " is limited in away
somewhat resembling the American doctrine. It is to be noted, however, that the
limitation expressed by the United States doctrine is wider, and it includes the laios as
well as the Constitutions of the States.

HowsoEVKR Arising. — The object of these words is to make it clear that the section
refers, not only to questions arising in cases to which the Commonwealth or a State is a
party, but also to questions arising in litigation between pi-ivate individuals. The
experience of the United States, as well as of England, shows that the most important
constitutional cases have usually arisen in cases between individuals. Thus the great case
of Marbury v. Madison — the leading American authority as to the right to obtain a
mandamus against a federal officer— M'as brought by a private citizen against the
Secretary of State ; and the English case of Ashby v. White— the leading authority upon
the maxim " ubijus, ihi remedium" — was brought by a voter against a returning officer
who had refused to allow his vote.

When Mr. Chamberlain's first compromise was suggested (p. 245, supra) doubts
were expressed by critics in Australia as to whether the clause (which forbade appeals
on questions "howsoever arising" as to the limits of constitutional powers, " unless by
the consent of the Executive Government or Governments concerned ") applied to cases
where the parties were private citizens. The clause was clearly intended so to apply,
but doubts were supposed to arise from the words " Executive Government or Govern-
ments concerned," which might be construed to mean that the Executive Governments
must be directly concerned as parties. In the section as it now stands no such doubt
exists.

§ 314. "The Limits Inter Se of the Constitutional

Powers."

Limits ixteb se. — The two classes of questions as to which appeals to the Privy
Council are forbidden, except by leave of the High Court, are questions as to the limits
inter se

(a) of the constitutional powers of the Commonwealth and those of any State or
States ; and

(h) of the constitutional powers of any two or more States.

Each of these classes refers to two sets or categories of powers, which are placed in
mutual opposition to each other by the words " inter se." Thus in class (a) we have
(1) the constitutional powers of the Commonwealth on the one hand, and f2) the
constitutional powers of any State or States on the other hand ; and the question is as
to the limits " between themselves " of these two categories of powers. In cla.ss (6), we
have (1) the constitutional powers of any State or States on the one hand, and (2) the
constitutional powers of any other State or States on the other hand ; and the question
is as to the limits " between themselves " of these two categories of powers. The question
in each case is as to the limits " inter se" of the two categories ; that is to say, as to
whether a particular power belongs to the one category or to the other.

The word "limit," taken by itself, is not altogether free from ambiguity ; it may
mean either (1) the boundary of a contained area, or (2) the extent of a contained area.
But the phrase " limits inter se" applied to two mutually opposed categories, can hardly
mean anything else than the dividing line between them. Thus the questions referretl
to in this section are questions as to the distribution of constitutional powers —

§314.]

THE JUDICATURE. 757

(a) between the Commonwealth on the one hand, and anj' State or States on

the other ; or

(b) between any State or States on the one hand, and any other State or States

on the other.

In other words, it is not enough, in order to constitute a "question as to the limits
inter se of constitutional powers," that this is a question as to the extent of the powers of
the Commonwealth or of a State ; there must also be mutual opposition, either between
the powers of the Commonwealth and those of a State, or between the powers of one
State and those of another. There must be a question, not merely whether one of them
has the power, but which of the two has the power. Thus a question as to the extent
of the federal power to legislate with respect to trade and commerce, is a question as to
the limits inter se of the powers of the Commonwealth and the States, because any
increase of the power of the Commonwealth in that respect involves a diminution, either
actual or potential, of the power of the States. On the other hand, a question as to the
extent of the federal power to legislate in respect of fisheries beyond territorial limits is
not such a question, because the States have no power in that respect, and the ext«nt of
the federal power does not affect the powers of the States in any way whatever.

Before discussing the application of the section as between (a) the Commonwealth
and the States, and (6) two or more States, it will be advisable to analyse the phrase
" constitutional powers."

CoxsTiTmoxAL, Powers. —The word " constitutional " need not refer exclusively
to the Constitution of the Commonwealth ; it may refer also to the Constitutions of the
States. In Clause 74 as adopted by the Convention, the matters as to which an appeal
to the Privj- Council were forbidden were matters " involving the interpretation of this
Constitution or of the Constitution of a State " — with an exception in cases where the
public interests of some part of the Queen's dominions outside the Commonwealth were
involved. This Constitution, bj" sees. 106 and 107, expressly saves the Constitutions of
the States, and the Constitutional powers of the State Parliament, so far as they are not
affected by the Constitution of the Commonwealth. It is conceivable, therefore, that
questions may arise as to the limits of the constitutional powers of the States, as defined
by their respective Constitutions, as well as the limits of their constitutional powers as
defined bj* the Constitution of the Commonwealth.

The word " powers" is wide enough to include all the powers of government. It
includes the legislative power of the Commonwealth (sec. 1), the exectitive power of the
Commonwealth (sec. 61), and the judicial power of the Commonwealth (sec. 71) ; and
also the corresponding legislative, executive, and judicial powers of the States, as defined
by their respective Constitutions.

QuESTioxs AS TO LiMiTS OF PowERS. — We may now proceed to discuss the
nature of questions " as to the limits »M/e>' «e" (a) of the constitutional powers of the
Commonwealth and of the States, and (6) of the constitutional powers of two or more
States.

(o) As between the CommomoexUth and the States. — Questions "as to the limits inter
se of the constitutional powers of the Commonwealth and those of any State or States "
are questions which arise in connection with the federal distribution of power between
the Commonwealth on the one hand and the States on the other. Such questions, it may
fairly be assumed, will be numerous and important. One of the most fundamental
features of the Constitution is the distribution of the sum-total of gMOJSJ-sovereign
governmental powers — legislative, executive, and judicial — between the Federal Govern-
ment and the State Governments. The legislative powers given to the Federal Parliament
by sections 51 and 52, and in other parts of the Constitution, are necessarily expressed
in broad and general terms ; and the interpretation of these, and their application to
individual cases, is one of the most important and responsible duties which will devolve
upon the High Court. In the Uiiited States, the various legislative powers of the Union

758 COMMENTARIES ON THE CONSTITCTTIOlSr. [Sec. 74.

— and especially the wide power to " regulate trade and commerce with foreign nations,
and among the several States " — have received an immense amount of judicial inter-
pretation, the effect of which is to define in detail the exact limits of the powers of the
Union on the one hand, and of the States on the other. A similar process of judicial
development of the Constitution may be expected to occur in Australia. In the case of
nearly every one of the subjects of legislation assigned to the Federal Parliament, cases
may arise as to the meaning and extent of the federal power, as to the consequent
limitation of the powers of the States, and as to conflicts between Federal and State laws.

Not only in the field of legislation, but also in the fields of administration and
adjudication, the system of the federal distribution of power may lead to conflicts of
authority and jurisdiction which will become subjects of judicial determination. The
exact limits between the executive power of the Commonwealth and those of the several
States, and the exact limits of the jurisdiction of the Federal and State courts
respectively, will have to be determined by the Courts from time to time, whenever
questions arise in the course of litigation as to the meaning or application of the
provisions of the Constitution upon these subjects.

(6) As between State and Slate. — Questions "as to the limits inter ae of the constitu-
tional powers of any two or more States " are of a difi"erent character, and are likely to
be neither so important nor so numerous. In the case of the distribution of power
between the Commonwealth and the States, we have to deal with two sets of governing
organs, operating upon the same territory and upon the same people, but exercising
different sets of powers ; and the delimitation of their respective .spheres of action is
necessarily somewhat difficult and intricate. But in the case of two States, we have two
sets of governing organs, exercising similar powers, but operating upon different
territories and upon different people. The delimitation in this case is chiefly territorial,
and is therefore much simpler. Questions of disputed boundaries, and questions of
disputed territorial jurisdiction, would clearly come within the scope of this provision ;
but it is not quite apparent what other questions could arise as to the limits inter se of
the constitutional powers of two States. A State might indeed make unconstitutional
discriminations against another State or the residents therein (sec. 117) ; but a question
arising out of any such discrimination would hardly be a question of the limits inter se
of the constitutional powers of both States ; it would rather be a question of the consti-
tutional powers of one State and the constitutional rights of the other. A breach by one
State of the obligation to give full faith and credit to the laws, public acts or records,
or judicial proceedings of another State (sec. 118), might perhaps raise a question as to
the limits inter se of constitutional powers.

General Scope of the Prohibition. —A consideration of tliis section shows that
the general scope of the questions as to which an appeal to the Privy Council is foi'bidden
is far narrower than under the clause as adopted by the Convention, which forbade such
an appeal "in any matter involving the interpretation of this Constitution or of the
Constitution of a State, unless the public interests of some part of Her Maje8t3'\s
Dominions, other than the Commonwealth or a State, are involved." That provision
made the High Court the final arbiter of all questions of constitutional interpretation,
except where the interests of some other part of the Empire were concerned. But there
are many questions of constitutional interpretation, involving no interests outside tlie
Commonwealth, which do not come within the range of the questions defined in this
section. The Constitution, besides distributing powers between the Federal ami State
Governments, grants to the Federal Parliament certain new powers not previously-
exercised by the Parliaments of the States, and also prescribes the structure of the
several departments of the Federal Government, and the mode in wliich the powers
conferred are to be exercised. Questions may arise as to the valid exercise of some of
these new powers, or as to the constitution of one of the organs of the Federal (iovern-
ment — such as the Inter-State Commission, or the High Court — or as to the projKsr
procedure for the exercise of an admitted federal power. These would not be questions

§§314-315.] THE JUDICATURE. 759

as to the limits inter se of constitutional powers, and would be subject to the Queen's
prerogative right of granting leave to api)eal.

The duty of defining the class of questions in which the prerogative of appeal is
taken away will devolve chiefly upon the Judicial Comnjittee of the Privy Council, upon
applications for special leave. The High Court, upon an application for a certificate
under this section, will also have to interpret the section ; but it must clearly be
governed, in the matter of interpretation, by the decisions of the Privy Council. (See
note, § 315, i7ifra.)

§ 315. " Unless the High Court shall Certify."

When it is desired to appeal from a decision of the High Court upon a constitutional
<juestion of the kind described in this section, special leave to appeal must first be
obtained, uot, as in other cases, from the Privy Council, but from the High Court itself.
This principle of making the right to appeal dependent upon the leave of the court
whose decision is appealed against is not novel. For instance, in England, appeals from
the county courts and other inferior courts are determined by the Divisional Court, and
the decision of the Divisional Court is final unless leave to appeal is given by the
Divisional Court. (Supreme Court of Judicature Act, 1873 ; 36 and 37 Vic. c. 66,
sec. 45.)

Discretion to Grant or Refcse. — The High Court has an absolute discretion to
grant or refuse a certificate ; the only direction given by the Constitution being that the
eourt must be satisfied that for some " special reason " the certificate should be granted.
This discretion, however, like every judicial discretion, is not to be exercised capriciously
nor arbitrarily, but on judicial grounds and for substantial reasons. (Per .Jessel, M.R.,
re Ta\lor, 4 Ch. D. 160; per Lord Blackburn, Doherty v. Allman, 3 App. Ca. 728.)
" Discretion is a science or understanding, to discern between falsity and ti*uth, between
wrong and right, between shadows and substance, between equity and colourable glosses
and pretences, and not to do according to their wills and private affections."' (Lord
Coke, in Rooke's case, 5 Rep. 100a.) "Discretion, when applied to a court of justice,
means sound discretion guided by law. it must be governetl by rule, not by humour ;
it must not be arbitrary, vague, and fanciful, but legal and regular." (Per Lord
Mansfield, Rex v. Wilkes, 4 Burr. 2539.)

The provision that " the High Court may so certify if satisfied that for any special
reason the certificate ought to be granted" not only shows that the court has a
discretion, but indicates to some extent the principles which ought to guide the exercise
of that discretion. A certificate is not to be granted ais a matter of course to every
would-be appellant ; it is not even to be gi-auted in every case in which the Court can
see some show of reason for an appeal ; it is only to be granted if the Court is satisfied
that for some " special reason " it ought to be granted. The use of these words seem to
suggest that the certificate of the High Court, granted for " special reason," is intended
to be analogous to the " special leave" of the Privy Council. That is to saj% in this
particular class of constitutional questions, "special leave " to appeal must be obtained,
not as in other cases from the Privj- Council, but from the High Court. It seems
probable, therefore, that the High Court, in granting or refusing a certificate, will be
guided by the principles laid down by the Privy Council in granting or refusing special
leave of appeal. (See Notes, § 310, supra.)

In this view it appears that this section, whilst technicall}' it impairs a prerogative
of the Queen, in reality only alters the channel through which the prerogative is to be
exercised. The royal prerogative of granting leave to appeal from colonial courts to the
Queen in Council has long ceased to be exercised personally by the Queen, and has been
vested in a particular Court of the Empire— the Judicial Committee of the Privy
Council. That prerogative, so far as certain kinds of Australian constitutional questions
are concerned, is now transferred to another of Her Majesty's Courts— the High Court
of Australia. The exercise of a prerogative which onlv affects the Commonwealth has

760 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

been entrusted to the Queen's servants in the Commonwealth. So far from being novel
or revolutionary, this is merely an application of a principle which has always guided
the development of the self-governing powers of British colonies.

Except as specially authorized by this section, the High Court is not required to
grant, and cannot grant, leave to appeal from its own decisions (see Cushing v. Dupuy,
5 App. Ca. at p. 416).

Refusal to Grant a Certificate. — In the cases mentioned in this section, if the
High Court refuses to grant a certificate, its decision will be absolutely final. In
connection with this subject, one interesting possibility may be referred to. The High
Court can only grant a certificate when the decision appealed from involves a question
of the limits inter se of constitutional powers. It is possible that, on an application for
a certificate, the High Court may refuse the certificate on the ground that the question
at issue is not of the specified kind, and that the proper course is to apply to the Privy
Council for special leave. If the appellant then applies to the Privy Council, it is
possible that the Privy Council may differ from the High Court, and hold that the
question is a question of the limits inter se of constitutional powers, and that without a
certificate from the High Court there can be no appeal. In such a case though the
Privy Council could not set aside the discretionary order of the High Court, the High
Court would clearly for the future be bound, as a matter of judicial propriety, to follow
the interpretation put upon the section by the Privy Council.

Without Further Leave. — When a certificate has been obtained under this
section in respect of a particular "question," an appeal lies to the Privy Council "on
the question " without further leave. But if the appellant desires to appeal, not only
on the one question, but also on some other question which does not come within the
scope of this section, it would seem that he would have to obtain special leave from the
Privj' Council for such further appeal.

§ 316. " Shall not impair any Right which the Queen may

be pleased to Exercise, by virtue of Her Royal

Prerogative."

The prerogative cannot be affected without express words, so that even if this
declaration had been omitted, it would in effect have been read into the section. It was,
however, thought advisable to prevent any possibility of it being contended that the
words " final and conclusive " in sec. 73 meant conclusive as against the Queen's right to
grant special leave of appeal.

For the nature and extent of the prerogative right, apart from the limitations of
this section, see notes, § 310, supra. In addition to the specific limitation of the pre-
rogative in the first paragraph, there is a potential limitation in the last words of the
section.

Appeals from State Courts to Privy Council. —This Constitution, whilst giving
an alternative right of appeal to the High Court, does not interfere with the existing
right of appeal direct from the State Courts to the Privy Council (see Notes, § 299,
supra) ; and therefore there is still an appeal as of right in those cases which come
within the terms of the Orders in Council in force in the respective States. Tliis section
makes it clear that there is also an appeal " as of grace " by special leave in every case.

It may be taken for granted, however, that appeals as of grace from the State
Courts direct to the Privy Council will not be encouraged, and that special leave for such
appeals will rarely be grunted — at least in cases in which an appeal lies to the High
Court. An Australian Court of Appeal having been establislied, the Privy Council will
assuredly be reluctant to grant special leave to appeal from a State Court until the
remedies available in Australia have been exhausted. There Eeem to be very few cases,
since the establishment of the Supreme Court of Canada in 1875, in which special leave to

§§ 316-31S.] THE JUDICATURE. 761

appeal from a provnncial Court has been either given or refused. (Theberge v. Laudry, 2
App. Ca. 102 ; Gushing v. Dupuj', o App. Ca. 409 ; Carter v. Molson, 8 App. Ca. 530 ; Allan
r. Pratt, 13 App. Ca. 780. See Att.-Gen. of Quebec v. Murray, cited Wheeler, Confed.
Law of Canada, p. 482. See also remarks by Mr. Symon, Con v. Deb., Melb., p. 2455.)
These observations, of course, only apply to cases where special leave to appeal to the
Privy Council is needed. The appeal as of right from a State Court to the Privy
Council is, as already shown, not interfered with by this Constitution.

Where a decision of the Supreme Court of a State is appealable either to the High
Court or to the Privy Council, the choice of tribunal lies with the appellant. It is
conceivable that one party to a suit might appeal to the High Court, and another to the
Privy Council ; but this inconvenience can be remedied by regulation. Even in the
absence of regulation, the High Court would presumably have a discretionary power to
stay proceedings pending the decision of the Privy Council. In New South Wales,
since the Equity Act of 1880, and in Victoria under the Act 19 Vic. No. 13, there has
existed a similar alternative right of appeal from the Supreme Court in its Equitable
Jurisdiction either to the Full Court or direct to the Privy Council. (See Notes, § 299,
supra. )

§ 317. " Special Leave of Appeal from the High Court to
Her Majesty in Council."

" When a party desires to appeal, but cannot do so as of right, he presents a petition
to the Queen in Council for leave to appeal, which ought to disclose in the fullest and
frankest manner the circumstances under which the leave is sought, and to contain a
statement of the proceedings sutBciently full and precise to enable the Committee to
form an opinion : the petition is referred to the Privy Council, who advise the Crown
as to the propriety of granting or withholding permission." (Macpherson, P.C. Appeals,
p. 22 ; Lyall i-. Jardine, 7 Moo. P.C. N.S. 116 ; L.R. 3 P.C. 318.)

From the Supreme Courts of the States there is (in cases within the Orders in
Council) an appeal as of right ; but from the High Court there is no appeal whatever
except by special leave of the Queen in Council, or by a certificate of the High Court
under this section. The prerogative right of the Queen in Council to grant special leave
is preserved, subject to the limitations in this section. (See Notes, »upra, § 310 ; infra,
§ 318.)

The leading principles according to which leave will be granted or refused have
already been indicated. (Notes, § 310, supra.)

§ 318. "The Parliament may make Laws Limiting the
Matters in which such Leave may be Asked."

It would seem that apart from this provision, the Federal Parliament, notwith-
standing the assent of the Crown, would have been unable to impose any further
limitation on the Prerogative ; and there is some doubt whether colonial Legislatures
generally have such power. In Gushing v. Dupuy, 5 App. Ca. 409, the question of
the power of a colonial Legislature to affect prerogative rights was raised, but not
decided. In the report of Gu\-illier i\ Aylwin, in Stuart's R. , p. 527, there is a note of
Brougham's opinion :— " I am clearly of opinion that no such limitation is valid to bar
an appeal to the King in Council. I should greatly doubt if any colonial Act, though
allo'.ced b}- the Grown, if imconfirmed by Act of Parliament (i.e., of the Imperial Parlia-
ment) has power to take from the subject this right. But a colonial Act never allowed,
can clearly have no effect." The Canadian Parliament, however, passed in 1888 an Act
(51 Vic. c. 43) providing that "notwithstanding any rojal prerogative" no appeal
should lie to the Privj- Council in criminal cases. Exception was taken to this by the
Imperial authorities, and though it was not disallowed, it seems to be of doubtful

762 COMMENTARIES ON THE CONSTITUTION. [Sec. 74.

validity. (See Bourinot, Fed. Gov. in Can. p. 68 n. ; Wheeler, Confed. Law of Can.
p. 34.)

When the Commonwealth Bill was before the Imperial Parliament, the Delegates, in
their finst memorandum (see p. 231, supra) contended that the Legislatures of the
Australian colonies already had power to limit the prerogative right of granting leave of
.appeal.

' ' The concluding sentence of the clause, it is conceived, confers on the Commonwealth
a, right to do that which each State' at present has power to do, subject to reservation of
the Bill as affecting the prerogative, in accordance with the ordinary vice-regal instinic-
tions. See Instructions to Australian Governors, dated July, 1892, Clause viii.,
paragraph 7, under which the Governor is to reserve for the signification of the royal
pleasure ' any Bill of an extraordinary nature and importance, whereby our Prerogative,
or the rights and property of our subjects not residing in the colony, or the trade and
shipping of the United Kingdom and its dependencies may be prejudiced.' The framers
of the Instructions clearly appear to have considered that the colonies had full rights of
legislation in such matters as sec. 7, just quoted, sets forth, subject only to reservation
for the royal pleasure ; and then only when previous instructions upon the particular
Bill had not been obtained through one of the principal Secretaries of State, or when
the Bill did not contain a clause suspending its operation until the signification of the
royal pleasure. The last sentence of the clause, therefore, seems mereh' to confer on
the Federation that legislative power which has long been possessed by each of the
■constituent States." (Memo, of Delegates, House of Com. Paper, May, 1900, p. 16.)

The Imperial Government at first objected to this power, but they ultimatelj-
acquiesced in the contention of the Delegates. In moving the second reading of the Bill
Mr. Chamberlain said : —

' ' The delegates pointed out to us that this right is inherent in the powers of every
Parliament in Australia. The Parliament of every single State in Australia has, in its
general powers to make laws for the peace, order, and good government of the country,
the power, if it pleases, to make laws limiting the right of appeal, and that power is
subject to the right of Her Majesty to disallow or to have reserved any Bill dealing with
the subject. The delegates contended that as their Constitution specifically refers to
the subjects which alone can be treated by the Federal Parliament, it was necessary
specifically to mention this subject, or else the Federal Parliament would have less
power than the Parliaments of the constituent States. The reasonableness of that we
fully acknowledged, but we felt that if we specifically gave this power by the Consti-
tution we might be assumed to be giving away the right of reservation with regard to
this subject. It appears to us to be quite possible that hereafter we might be accused
of breach of faith if, wlien the Federal Parliament had legislated, we had reserved a Bill
under the powers given to us in another section of the Constitution." (Hans., 21 May,
1900, voL 83, pp. 762 3.)

This provision expressly confers on the Federal Parliament a power in the widest
terms to "limit the matters in which such leave may be asked," and thus, it may be
argued, practically to abolish altogether the appeal from the High Court to the Privy
Council.

It is to be noted, however, that the power of Parliament to limit the prerogative
right only applies to "such leave" — i.e., special leave of a,Tppea,\ from the High Court.
The right of appeal from the Courts of the States to the Privy Council — whether as a
matter of right or by special leave — cannot be interfered with by the Federal Parliament.

The essence of this provision was contained in an amendment added at Mr. Symon's
instance to the words saving the prerogative. Mr. Symon's words were : — " Provided
that the right saved is that of granting special leave of appeal, and shall continue only
until Parliament otherwise provides." (Conv. Deb., Melb., p. 2325; Historical Note,
mipra.) In this form it would have given the Federal Parliament an absolute and direct
power over the prerogative right to grant leave of appeal. At the final stage the
Drafting Committee altered the provision to the form in which it now stands, and a
short debate took place on the effect of the words. (Conv. Deb., Melb., pp. 2453-6.*
Mr. Glynn suggested that the clause gave the Parliament power to "abolish appeals"
from the High Court to the Privy Council. Mr. Barton explained that the provision
gave effect, in a more polite form, to the decision of the Convention. " We cannot give

318-319.]

THE JUDICATURE. 763

the Parliament dii-ect power to interfere with the prerogative — at least we do not think
it would be right to do so — but we give the Parliament a power to limit the matters in
which a subject may petition for leave of appeal. In that respect we carry out Mr.
Symon's amendment. The right to grant special leave to appeal is only to continue
until Parliament otherwise provides." The debate then proceeded as follows : —

Mr. Symox : "The clause as it stands will probably give effect to what has been
the intention of the Drafting Committee throughout. I would suggest, however, to Mr.
Barton that he should insert some words in clause 74 after the word ' matters.' If I
may say so, I think this is a more dexterous, and, to use an expression which we
have already heard, more mannerly way of putting the power of the Federal Parliament
into the clause than before. I would suggest that after the word ' matters ' the follow-
ing words be inserted : ' If any^,' so as to make it clear that the amendment I moved
gives this power to the Commonwealth Parliament if they choose to exercise it. They
might so limit it as to limit it awaj- altogether. A reader of the clause, who has interest
in seeing that the Federal Parliament has this power, might not so readily understand
it as it is."

Mr. B.AiiTON : " The hon. member means that if Parliament goes on limiting such
matters until the end, and there is only one left, it might leave out that one."

Mr. Stmox : *' I do not say that a law\'er would saj' that."

Mr. Barton : " I think that would only occur to a lawyer. I think that there is a
reasonable construction which a court will have to put upon these words, and that there
will be no difficulty."

Mr. Kingston' : " This will have to be considered by lawyers."
Mb. Barton : " Of course. I have no doubt as to the construction."
It appears therefore that the original decision of the Convention was to empower
the Parliament to abolish the prerogative right of granting leave to appeal ; that this
was afterwards passed in " a more mannerly way " by empowering the Parliament, not
to forbid the Queen to grant leave, but to limit the matters in which a subject might
ask leave ; that Mr. Symon wished to make it read " matters, if any " — to make it clear
to the lay mind that the power extended to limiting it away altogether ; but that Mr.
Barton thought there was no doubt about the construction.

The power to " limit the matters " is indeed given in the widest terms ; but at the
same time the power given is a power to limit, and not to abolish. To limit means " to
apply a limit to, or set a limit for ; to terminate, circumscribe, or lestrict, by a limit or
limits." (Webster's Internal. Diet.) A limit necessarily implies a content — an area
within the limit. It is conceived that a law of the Federal Parliament, purporting to
abolish the right of asking for leave in all matters whatever, would be outside the scope
of the Constitution. On the other hand, the power to "limit the matters" in which
leave might be asked could undoubtedly, if Parliament thought fit, be exercised to such
an extent as to leave very little for the prerogative right to operate upon.

The power to " limit matters " may be compared with the power to "prescribe
exemptions " in sec. 73 (see Xotes, § 310, supra). They both enable a right of appeal to
be cut down ; but they deal with the subject from opposite standpoints. The power to
prescribe exceptions contemplates the definition of the excludeii area ; whilst the power
to limit the matters in which leave may be asked seems rather to contemplate the
■definition of the included or circumscribed area.

§ 319. " Shall be Reserved . . for Her Majesty's

Pleasure."

By section 58, any proposed law passed by the Houses of the Federal Parliament
may be reserved by the (xovernor-General for the Queen's assent. By this section, anj-
proposed law limiting the matters in which special leave to appeal, may be asked must
be so reserved. Even without this express provision, the Governor-General could have
safeguarded Imperial interests in this respect by reserving such proposed laws, in
the exercise of his discretion, for the signification of Her Majesty's pleasure (see Xote,

764 COMMENTARIES ON THE CONSTITUTION. [See. 75.

§ 267 mp7-a). Even should that safeguard prove insufficient, and the Bill be assented to
by the Governor-General, the Queen could always, within one year, exercise her power
of disallowance — the supreme check on the enactment of laws invading the prerogative
or affecting Imperial interests (sec. 59). The object of embodying this direction in the
Constitution itself was to secure a constitutional recognition of the fact that laws of this
kind were matters of special Imperial concern ; so that, even if the right of withholding
the royal assent, in matters of ordinary federal legislation, should fall into comparative
disuse, these particular laws should stand upon a different footing.

Original jurisdiction of High Court.

75. In all matters^^^ —

(i.) Arisino- under anv treatv^^^ :
(ii.) Affecting consuls or other representatives of

other countries^^^ :
(iii.) In which the Commonwealth, or a person suin;t(
or being sued on behalf of the Commonwealth,
is a party ^'^^ :
(iv.) Between States, or between residents of different
States, or between a State and a resident of
another State^'^* :
(v.) In which a writ of mandamus or prohibition or
an injunction is sought against an officer of
the Commonwealth^-^ :
the High Court shall have original jurisdiction^^'^.

United Statks. — The judicial power shall extend to all cases, in law and equity, arising under
[this Constitution, the laws of the United States, and] treaties made, or which shall be
made, under this authority ; to all cases affecting aml)assador8, other public ministers, and
consuls ; [to all cases of admiralty and maritime jurisdiction] ; to controversies to which
the United States sliall be a party ; to controversies between two or more States ; between
a State and citizens of another State ; between citizens of different States ; between citizens
of the same State claiming lands under grants of different States ; and between a State, or
the citizens thereof, and foreign States, citizens or subjects.

In all cases affecting ambassadors, other public ministers, and consuls, and those in which a
State shall be party, the Supreme Court shall have original jurisdiction. In all the other
cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to
law and fact, with such exceptions, and under such regulations as the Congress shall
make. (Const. Art. iii. sec. 2.)

Historical Note. — The corresponding provision framed and adopted without
debate by the 1 891 Convention was as follows : -

" In all cases affecting public ministers, consuls, or other representatives of other
countries, and in all cases in which the Commonwealth, or any person suing or being
sued on behalf of the Commonwealth, or is a party, or in which a writ of mandamus or
prohibition is sought against an officer of the Commonwealth, and in all cases of
controversies between States, the Supreme Court of Australia shall have original as well
as appellate jurisdiction." (These cases, with others, were also recapitulated in a clause
defining the jurisdiction which might be given to other federal courts. See Historiwil
Note, sec. 77.)

As framed in the Adelaide session, the clause was divided into sub-clauses ; the
word "matters" was used to cover all the sub-clauses, in place of "cases" and

§ 320.] THE JUDICATURE. 765

'controversies ; " and the sub-clause "arising under any treaty" was added — or rather,
transferred from the subjects as to which Parliament had power to give jarisdiction.
There was no debate.

At the Melbourne session, part of the debate on the words of this clause occurred
on the consideration of a clause defining the " judicial power," in which these sub-
sections were repeated. Some debate was raised on the word " matters." Mr. Glynn
moved the omission of the sub-clause " arising under any treaty," on the ground that it
was outside the proper scope of the judicial power. Mr. Symon explained that the
power might be needed, and the sub-clause was agreed to. The sub-clause dealing with
" mandamus and prohibition " was struck out, on the giound that it might possibly
operate as a limitation, and exclude by implication some other kinds of procedure.
<Conv. Deb., Melb., pp. 319-21, 349.) Subsequently, on recommittal after the first
report, the matter was re-considered (pp. 1875-85), and Mr. Barton moved the re-insertion
of the sub-clause, with the addition of the words " or an injunction." Mr. Glynn and
Mr. Kingston feared that this might allow the judiciary to interfere in matters of
politics ; but Mr. SjTUon pointed out that the clause only conferred a jarisdiction, not a
right. Dr. Quick and Mr. Isaacs, on the other hand, feared that the enumeration of
-certain writs might be construed to operate as a limitation. The sub-clause was agreed
to. The words "or between residents of difiierent States, or between a State and a
resident of another State " were also added at this stage. (Conv. Deb., Melb., pp
1875-85.) After the fourth report the section was verbally amended by the Drafting
■Committee. (Conv. Deb., Melb., p. 2456.)

§ 320. '• In all Matters."

All. — One important diflFerence between this section and the corresponding section
of the United States Constitution is that the word "all" applies to every sub-section ;
whereas in the United States Constitution part of the section extends " to all cases " and
part "to controversies" — not all c-ontroversies. Interpretation in the United States
has turned on this distinction (see Martin r. Hunters Lessee, 1 Wheat. 304 ; Story,
Comm., § 1748 ; Kenl, Comm., i. 318.)

Mattei:s. — The word "matters" was chosen by the Judiciary Committee at
Adelaide as the widest word to embrace every possible kind of judicial procedure that
could arise within the ambit of the section. (See Conv. Deb., Melb., pp. 319-20.) The
United States Constitution uses two expressions — " cases in law and equitj'," and
*' controversies."

" The Supreme Court has defined the phrase, ' case in law or equity,' to mean the
submission of a subject to the judicial department by a party who asserts his rights in
the form prescribed bylaw, i.e., 'a suit instituted according to the regular course of
judicial proceedings,' and has distinguished cases from controversies by the limitation
of the latter term to civil suits. According to this distinction, the Constitution has
conferred no criminal jurisdiction upon the United States Courts wherever it denominates
the suit a controversy." (Burgess, Pol. Sci., ii. 325.)

The word "matters" is used in the Privy Council Act, 3 and 4 Will. IV. c. 41,
which empowers the Judicial Committee (in addition to its functions as a court of appeal
from inferior courts of law) to hear or consider " any such other matter» whatsoever " as
the Crown thinks fit to refer to it. " It has, however, been decided that this clause
will not justify a reference to the .Judicial Committee of anything whatever that could
not be properly entertained by, or come before, the Crown in Council. For example,
this Committee could not advise upon questions of general or political policy, for that is
the especial province of the Cabinet council ; neither could it ad\ise in criminal matters,
in which, except in certain colonial cases, no appeal to the Privy Council is allowed by
law." (Todd, Pari. Gov. in Colonies, pp. 305-6. See Hans. Deb. vol. 209, pp. 977,
«84.)

ExTKA- JUDICIAL Opisioss. — The important question arises whether any power exists
or can exist under the Constitution for the Parliament or the Executive to refer to the

766 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

Court, for its opinion, questions not actually arising in the course of any judicial
proceeding. The subject of extra-judicial opinions is one of considerable constitutional
importance, and reference may be made to English, American, and Canadian constitu-
tional practice.

In England, till the end of the 17th century, it Mas not uncommon for the King to
ascertain the opinions of his Judges on a question before it came judicially before him.
(See Broom, Const. Law, pp. 143-6.) This objectionable practice of extra-judiciallj^
anticipating judicial decisions in cases pending in the courts was generally condemned
by jurists as tending to sap the independence and impartiality of the Bench, and has
fallen completely into disuse. The House of Lords, however, when sitting in its judicial
capacity, may still submit to the Judges questions bearing on anj' case sub judice ; and
even when sitting in its legislative capacity, it may constitutionally propound to the
Judges abstract questions of law. (Broom, Const. Law, p. 147.) Thus before the
passing of Fox's Libel Act, in 1792, a series of questions relating to the existing law of
libel were submitted to and answered by the Judges. The Judges will, however,
decline to answer a question put by the House of Lords, unless it is confined to the
strict legal construction of existing laws. Re Westminster Bank, 2 CI. and F. 191.
where the Judges declined to answer a question whether the provisions of a certain Bill
then before the House were consistent with the statutory rights of the Bank of
England.

Li the United States, the strict separation of the judicial from the other departments
makes it unconstitutional for the Courts to perform extra-judicial duties.

" By law the President possesses the right to require the written advice and
opinions of his cabinet ministers upon all questions connected with their respective-
departments. But he does not possess a like authority' in regard to the judicial depart-
ment. That branch of the Government can be called upon only to decide controversies
brought before them in a legal form ; and therefore are bound to abstain from any
extra-judicial opinions upon points of law, even though solemnly requested by the
executive." (Story, Comm. § 1571 ; and see Bryce, Amer. Comm., i. 257.)

" The functions of the Judges of the Courts of the United States are strictly and
exclusively judicial. They cannot therefore be called upon to advise the President in
any executive measures, or to give extra-judicial interpretations of law, or to act as
Commissioners in cases of pensions or other like proceedings " (Id. § 1777.)

Thus in Hayburn's Case, 2 Dall, 409 (and see ibid. 410-412) an Act assigning
ministerial duties to the Circuit Courts was held to be unconstitutional, and it was laid
down that Congress cannot constitutionally assign to the judicial power any duties-
which are not strictly judicial. In Dewhurst v. Coulthard, 3 Uall. 409, while an action
was pending in a circuit court, the opinion of the Supreme Court was prayed on an
agreed statement of facts ; but the Court declared that it could not take cognizance
of any suit or controversj' not brought before it by regular process of law.

The Constitutions of some of the American States expressly provide for extra-judicial
opinions on the validity of proposed laws ; but in the absence of such provision the State
Courts have held that the separation of powers implicitly prohibits advisory opinions.
(Amer. and Eng. Encyc. of Law, 2nd Ed., vi. 1067.)

" In a few of the States, indeed, the legislative department has been empowered by
the Constitution (i.e., of the State) to call upon the courts for their opinion upon the
constitutional validity of a proposed law, in order that, if it be adjudged without
warrant, the legislature may abstain from enacting it. But those provisions are not
often to be met with, and judicial decisions, especially upon delicate and ditlicult
questions of constitutional law, can seldom be entirely satisfactory when made, as they
commonly will be under such calls, without the benefit of argument at the bar, and of
that light upon the questions involved which might be afforded by counsel learned iu
the law, and interested in giving them a thorough investigation." (Cooley, Const.
Lim. 40.)

In Canada it is provided by a Dominion statute (54 and 55 Vic. c. 25, s, 4) that
" important questions of law or fact touching provincial legislation ... or touching
the constitutionality of any legislation of the Parliament of Canada, or touching any

§ 320.1 THE JUDICATURE.

other matter with reference to which he sees fit to exercise this power," may be referred
by the Governor in Council to the Supreme Court for hearing. Persons interested are
entitled to be notified and to be heard by counsel, and the Judges must give their
reasons ; but the opinions of the court are ad\isor3' only, although they are appealable
to the Privy Council. Ontario has a similar enactment. (See Wheeler, Confed. Law in
Canada, pp. 394-5, 401-2, 405-6.)

Under this Constitution it is clear that, as in the United States, the functions of
the federal Justices are " strictly and exclusively judicial," and that no duties can be
cast upon them of an essentially extra-judicial kind. (See Notes to sec. 81.) They
cannot be called upon to advise on questions of a political nature, or as to the consti-
tutionality of proposed legislation. But whether they could be called upon by the
Parliament— or by the Executive acting under a law of the Parliament — to deliver
opinions on the " strict legal construction of existing laws," is a more difficult question.
The answer seems to depend on the scope and meaning of the word " judicial." Would
such opinions be judicial, or extra-judicial ? The true answer would seem to be that the
function of advising on a matter of law, where there is no regular judicial proceeding
before the Court to declare the rights of parties, or to enforce remedies, is no part of the
duty of a Judge, and is not contemplated in the gift of the judicial power. In England,
the ad\nsory duties of the Judges were very exceptional, and onh' exercised, by virtue of
ancient custom, at the request of the House of Lords — itself a judicial as well as a
legislative body. In the Australian colonies no such practice is known ; whilst the
advisor}' duties which ai-e cast upon the Canadian judges by statute are clearly extra-
judicial. The giving of advisory opinions " is not the exercise of the judicial function
at all, and the opinions thus given have not the quality of judicial authority." (Prof.
J. B. Thayer, article on the Origin and Scope of the American Doctrine of Constitutional ■
Law, 7 Harvard L. Rev. 129, 153 ; cited Kent, Comm. L 296.)

" Whenever, in pursuance of an honest and actual antagonistic assertion of rights
bj' one individual against another, there is presented a question involving the validity of
any act of any legislature, State or Federal, and the decision necessarily rests on the
competency of the legislature to so enact, the court must, in the exercise of its solemn
duties, determine whether the Act be constitutional or not ; but such an exercise of
power is the ultimate and supreme function of courts. It is legitimate onlj- in the last
resort, and as a necessity for the determination of real, earnest, and vital controversy
between individuals. It never was the thought that, by means of a friendlj' suit, a
part}- beaten in the legislature could transfer to the courts an inquiry as to the consti-
tutionality of the legislative act." (Per Brewer, J., Chicago and Grand Trunk R. Co.
V. Wellman, 143 U.S. at p. 345.)

The argument from policy is very strong in support of this view. Ex parte inter-
pretations of the law, without the thorough examination of interested parties and their
counsel, are apt to be unsatisfactory and unauthoritative. It might indeed happen that
the persons interested might be represented and heard upon a reference ; but the
practice would be, at least, open to serious abuse. The one advantage it would have —
that of obtaining a prompt decision upon questions which are in doubt, but which no
one is ready to litigate — is more than balanced by other considerations. The Judges
would be liable to be hindered in the discharge of their appropriate duties by being
employed, in a manner, as the law advisers of the Crown — a position which might lead
to the undesirable entanglement of the Bench in political matters. Seeing that the
Supreme Court is not solely the servant of the Federal Government, but is also the final
arbiter between the Commouwealth and the States, it is ot the highest constitutional
importance that it should interpret the scope of its judicial duties in the strictest possible
way.

Nor do the debates of the Convention justify the supposition that it was intended
to permit such a practice. In the Bill of 1891 the jurisdiction of the Federal Courts,
was confined to " cases" and "controversies," as in the United States. The Judiciary
Committee at Adelaide substituted the word " matters," \*ith a view, not of extending
the scope of the clause to extra-judicial opinions, but of including every kind of judicial

768 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

process, whether civil or criminal, and whether there were opposing parties or not. At
Melbourne (Debates, 319-20) Mr. Isaacs and Dr. Quick raised this very question. Mr.
Symon (Chairman of the Judiciary Committee) replied : —

" We want the very widest word we can procure in order to embrace everything
that can possibly arise within the ambit of what are comprised under the sub-section.
. . . I think we are using the best word here. The word ' matters ' merely indicates
the scope within which the judicial power is to be exercised, but no matter can be dealt
with until it comes before the authorities in the form of a case or some judicial process
which will be regulated by the Judiciary Acts. It does not strike me that the word is
too wide."

Mr. Barton added : — "I think the word ' matters ' means such matters as can arise
for judicial determination." (See also Coqv. Deb., Melb., p. 1680.)

§ 321. "Arising Under any Treaty."

Treaty. — A treaty is a compact between two or more independent and sovereign
States. The power of making treaties is by English law vested in the Crown as a part
of the prerogative. (Stephen's Comm. ii. 491.)

" It is a rule of international law, that none but Supreme and independent sovereign
powers are competent to contract treaties with foreign nations. The only exception to
this rule is where the right to conclude treaties in its own behalf, with other States or
foreign powers, has been expressly delegated to a subordinate government by the Crown
and Parliament of the mother country. But responsibility for the exercise of such
delegated po^ver continues to rest upon the Imperial authority, to the same extent as
for any acts of any other accredited public agents of the Crown.'' (Todd, Pari. Gov. in
Col. p. 247.)

Accordingly, though treaties with foreign powers are uniformly recognized as matters
■of Imperial concern, concessions have been made to the Dominion of Canada as regards
the negotiation of treaties between Her Majesty and the United States on matters
specially concerning Canadian interests. (Todd, Pari. Gov. in Col. pp. 268-275.) From
1871-3 claims were put forward by some of the Australian colonies to enter into
independent reciprocal treaties with foreign States ; but the Imperial Government
refused to part with the control of the foreign relations. (See pp. 106-7, 634, sujira ;
and Todd, Pari. Gov. in Col. p. 257.)

Similarly the Commonwealth, being a dependent part of the Empire, has no power
to make treaties except so far as such power may be expressly delegated to it by the
Imperial Government. This Constitution does not itself contain any such delegation of
a treaty-making power. The Bill of 1891 contained a power to legislate as to "external
affairs and treaties," and in the covering clauses it was provided that " all treaties made
by the Commonwealth " should be binding. These provisions were repeated in the
Adelaide draft of 1897 ; but afterwards, at Sydney and Melbourne respectively, references
to treaties were struck out. (Con v. Deb , Syd., pp. 239-40 ; Melb., p. 30.) But though
no power to make treaties is expressly conferred, there is nothing to prevent the Crown
from delegating to the Commonwealth the power of negotiating treaties, on behalf of
the Empire, to any extent which may be deemed advisable. (See Note, § 214, p. 634,
supra. )

The corresponding clause in the Bill of 1891 was limited to treaties " made by the
Commonwealth with another country ; " but in 1897 these limiting words were not
introduced, and the clause therefore applies to all treaties of which Australian courts
can take judicial cognizance. The constitutional right of the Crown to make treaties
includes the right to make them binding on all parts of the Empire ; and although it is a
recognized principle that participation in the benefits of a treaty entered into with any
nation does not extend to the colonial possessions of such nation when they are not
expressly named, yet as a matter of fact the commercial treaties now in force l)etween
Great Britain and other countries are in most instances expressly made applicable to the
colonies. (Todd, Pari. Gov. in Col. pp. 265-6. )

-§ 321.]

THE JUDICATURE. 769

MirsiciPAL. Rights Under Trkatiks. — Treaties themselves are matters of inter-
national law, and the primary rights and obligations which arise under them, between
the high contracting parties, are matters with which courts of law have nothing to do.
As a rule, a treaty does not of itself create legal relations between individuals ; and the
municipal courts can neither enforce its observance, nor decide whether it has been
violated. (Elphinstone v. Bedreechund, 1 Knapp, 340.)

"A treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and the honour of the governments which
are parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamations, so far as the injured party chooses to seek redress, which
may in the end be enforced by actual war. It is obvious that with all this the judicial
courts have nothing to do and can give no reflress. But a treat}' may also contain
provisions which confer certain rights upon the citizens or subjects of one of the nations
residing in the territorial limits of the other, which partake of the nature of municipal
law, and which are capable of enforcement as between private parties in the courts of
the country. An illustration of this character is found in treaties, which regulate the
mutual rights of citizens and subjects of the contracting nations in regard to rights of
property by descent or inheritance, when the indi\-iduals concerned are aliens." (Per
Miller, J., Head Money Cases. 112 U.S. at p. 598.)

As the words "arising under any treaty"' are adopted from the United States
Constitution, and as light is thrown upon their scope by Amerivian cases, it is necessary to
point to the fundamental distinction between the nature of a treaty under American and
English law. The United States Constitution expressly declares that treaties, as well as
the Constitution and laws of the luiion, are the supreme law of the land ; and therefore
treaties, when they are self-executing, are on a level with federal statutes, and may
become the subject of judicial cognizance without direct legislative sanction from
Congress. They in fact derive their legislative validity from the Constitution itself.

^'' A treaty is, in its nature, a contract between two nations, not a legislative act.
It does not generally efifect, of itself, the object to be accomplished, especially so far as
its operation is infr --territorial ; but is carried into execution by the sovereign power ot
the respective parties to the instrument. In the United States, a diflFerent principle is
established. Our Constitution declares a treaty to be the law of the land. It is,
consequently, to be regarded in courts of justice as equivalent to an act of the legislature,
whenever it operates of itself without the aid of any legislative provision. But when
the terms of the stipulation import a contract, when either party engages to perform a
particular act, the treaty addresses itself to the political, not the judicial department ;
and the legislature must execute the contract before it can become a rule for the court."
( eer Marshall, C.J., Foster v. Xeilson, 2 Pet. 314.)

" A treaty to which the United States is a part}' is a law of the land, of which all
courts, state and national, are to take judicial notice, and by the provisions of which they
are to be governed, so far as thev are capable of judicial enforcement." (United States v.
Rauscher, 119 U.S. 407.)

" A treaty is primarily a contract between two or more independent nations . . .
For the infraction of its provisions a remedj' must be sought by the injured party through
reclamations upon the other. When the stipulations are not self-executing, they can
only be enforced pursuant to legislation to carry them into effect, and such legislation is
-as much subject to modification and repeal by Congress as legislation upon any other
subject. If the treat}- contains stipulations which are self -executing, that is, require no
legislation to make them operative, to that extent they have the force and effect of a
legislative enactment. " (Whitney r. Robertson, 124 U.S. , at p. 194. See also United
States v. Forty-three gallons of Whiskey, 93 U.S. 188 ; Chinese Exclusion Case, 130
U.S. .581, 600; Homer v. United States, 143 U.S. 570; Fong Yne Ting r. United
States, 149 U.S. 698.)

In England, on the other hand, a treaty «loes not of itself have legislative effect, and
cannot, it seems, be a subject of judicial cognizance until it has been carried into effect
either by the Parliament or — where the Crown either by statute or prerogative has the
requisite authority — by the Crown. Thus a treaty of cession does not operate to
change the national character of a place until some act of possession has been performed
by the Crown. (The Fama, 5 Rob. Adm. 106.) Commercial treaties are frequently
executed by Act of Parliament which gives them legislative effect ; see for instance the
Imperial Act 37 Geo. III. c. 97, carrying into effect a treaty between Great Britain and the

770 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

United States. Extradition treaties are carried into efiect bj' Orders in Council under
the Imperial Extradition Acts, 1870 and 1873 ; international arrangements as to Copy-
right by Orders in Council under the International Copyright Acts. (See Note, § 214,
supra. )

" The responsibility of determining what is the true construction of a treaty, raafle
by Her Majesty with any foreign power, must remain with the Imperial Government,
who can alone decide how far Great Britain should insist upon the strict enforcement of
treaty rights, whatever opinions may be entertained upon the subject in any colony
especially concerned therein." (Todd, Pari. Gov. in Colonies, p. 272.)

" On the other hand, the legislature in any colony is free to determine whether or not
to pass laws necessary to give effect to a treaty entered into between the Imperial
Government and any foreign power, but in which such colony has a direct interest."
(Ih. p. 275.)

The power of making laws to give effect to treaties, so far as they concern the
Commonwealth, must be deemed to be included in sec. 51 — xxix. — "External affairs."
The sub-section as originally framed was " External affairs and treaties,''' but at the
Melbourne Convention (Debates, p. 30) the last words were struck out — apparentlj' lest
they should be construed as involving a claim of power to make treaties. The words
* ' external affairs " are, however, wide enough to confer on the Federal Parliament the
legislative power proper to a colonial legislature in respect of treaties. Compare sec.
132 of the B.N. A. Act, which gives the Parliament and Government of Canada "all
powers necessary or proper for performing the obligations of Canada or of any Pro\4nce
thereof as part of the British Empire, towards foreign countries, arising under treaties
between the Empire and such foreign countries." Under that section it was held that
the (Imperial) Extradition Act, 1870, applied to Canada, and was not inconsistent with
the section ; and that the (Canadian) Extradition Act, 1869, must be read with it.
[Exp. Charles Worms, 22 Lower Can. Jur. 109.)

Cases Arising under Treaties. — When a treaty has been duly carried into effect
by legislative or executive authority, legal rights and liabilities may arise under it which
may be the subject of judicial cognizance, and the treaty itself may become the subject
of judicial interpretation. For instances in which treaties have thus been interpreted
by the courts, see cases cited in Phillimore Intern. Law, ii. 125 (2nd Ed.). Also £xp.
Marks, 15N.S.VV. L.R. 159; 10 W.N. 224; Exp. Rouanet, 15 N.S.W. L.R. 269; 11
W.N. 55 ; National Starch Manuf. Co. v. Munn's Patent Maizena Co , 13 N.S.W. L.R,
Eq at p. 116.

To give jurisdiction under this section it is not necessary that rights should be
created bj' the treaty ; it is enough if they are protected by the treaty, from whatever
course they may spring. (New Orleans v. De Armas, 9 Pet. 224. ) The fact that the matter
in controversy in a suit is a sum received as an award, under the treaty providing for the
submission of claims to arbitration, does not "draw in question the validity of the
construction of a treaty." (Borgmeyer v. Idler, 159 U.S. 408. See Note, § 329 tn/ro,
" Arising under this Constitution.")

" It has been made a question as to what was a case arising under a treat}'. In
Owings V. Norwood's Lessee (5 Cranch. 344) there was an ejectment between two
citizens of Maryland, for lands in that State ; and the defendant set up an outstanding
title in a British subject, which he contended was protected by the British treaty of
1794. . . . The Supreme Court of the United States held that not to be a case
within the appellate jurisdiction of the Court, because it was not a case arising under
the treatJ^ The treaty itself was not drawn in question, either directly or incidentall}'.
The title in question did not grow out of the treaty, and as the claim was not under the
treaty, the title was not protected by it ; and whether the treaty was an obstacle to the
recovery, was then a question exclusively for the State Court " (Kent, Coram, i.
325-6.)

§ 322.] THE JUDICATURE. 771

§ 322. ** Affecting Consuls, or Other Representatives
of Other Countries."

Coxscxs. — The officers mentioned in the corresponding pro\-ision of the United
States Constitution are " ambassadors, other public ministers, and consuls." The
relations of the Commonwealth with foreign powers being not diplomatic, but almost
wholly commercial, the words " ambassadors" and " public ministers" were inapplicable.
Thus " consuls," who in the American provision are mentioned last in order, are the
main subject of this sub-section.

Consuls, unlike ambassadors and other public ministers, are not protected by the
law of nations, but are subject, both in ci\-il and criminal cases, to the laws of the country
in which they reside. (Kent, Comm. i. 44. )

" Consuls, indeed, have not in strictness a diplomatic character. They are deemed
as mere commercial agents, and therefore partake of the ordinary character of such
agents, and are subject to the municipal laws of the countries where they reside. Yet,
as they are the public agents of the nation to which they belong, and are often entrusted
with the performance of very delicate functions of State, and as they might be greatly
embarrassed by being subject to the ordinary jurisdiction of inferior tribunals, State
and national, it was thought highly expedient to extend the original jurisdiction of the
Supreme Court to them also. The propriety of vesting jurisdiction in such cases in some
of the national courts seems hardly to have been questioned by the most zealous opponents
of the Constitution." (Story, Comnu § 1660.)

The words of the Constitution, coupling consuls with "other representatives of
other countries," seem to contemplate that jurisdiction shall onlj- be conferred under
this sub-section when the consul or other representative is aflFected in his official or
representative capacity. (See Conv. Deb., Melb., p. 2456.) This construction is in
harmony with the position of a consul as a public agent of the countrj- which he
represents. So far as his public position is concerned, the special protection of the
federal jurisdiction is thrown over him ; but where his public position is not affected
there is no need to differentiate him from any ordinary citizen.

It would seem that the words of the United States Constitution— "affecting
ambassadors, other public ministers, and consuls" — are interpreted differently as
extending to the private as well as the public capacity of those dignitaries. Moreover
the American Judiciary Acts make the jurisdiction exclusive of the State Courts, so that
the dignitaries named can only be sued in the Courts of the Union. " This is not a mere
personal pri\'ilege ; it is a privilege of the foreign Sovereign, that his representative
should be sued only in the Courts of the United States, with which Government alone
he has relations ; and it is not waived by an omission to plead it to the action." (Davis
V. Packard, 7 Pet. 275. See also Kent, Comm. i. 45.)

" Affectixc." — It has been held in the United States that an indictment for offering
violence to the person of a public minister is not a case " affecting " the minister.

" It is that of a public prosecution, instituted and conducted by and in the name of
the United States, for the purpose of vindicating the law of nations and that of the
United States, offended, as the indictment charges, in the person of a public minister,
by an assault committe<l on him by a-private individual. It is a case, then, which affects
the United States and the individual whom they seek to punish ; but one in which the
Minister himself, although he was the person injured by the assault, has no concern,
either in the event of the pixjsecution or in the costs attending it." (Per Washington,
U.S. r. Ortega, 11 Wheat, at p. 469. See Storv, Comm. § 1661: Kent. Coram i'
39,315.)

It seems, however, that the words of the Constitution are broad enough to cover
cases where the consul or other representative is not a party, but may be affected in
interest.

" If a suit be brought against a foreign minister, the Supreme Coturt [of the United
States] alone has original jurisdiction ; and this is shown on the record. But suppose a
suit to be brought which affects the interests of a foreign minister, or by which the
person of his servant, or of his secretary, is arrested. The minister does not, by the

772 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

mere arrest of his secretary or his servant, become a party to this suit ; but the actual
defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit
affects a foreign minister, it must be dismissed ; not because he is a party to it, but
because it affects him. The language of the Constitution in the two cases is different.
This court can take cognizance of all cases ' affecting ' foreign ministers ; and therefore
jurisdiction does not depend on the party named in the record. But this language
changes when the enumeration proceeds to States. Why this change ? The answer is
obvious. In the case of foreign ministers, it was intended, for reasons which all
comprehend, to give the national courts jurisdiction over all cases by which they were
in any manner affected. In the case of States, whose immediate or remote interests
were mixed up with a multitude of cases, and who might be affected in an almost
infinite variety of ways, it was intended to give jurisdiction in those cases only to which
they were actual parties." (Per Marshall, C.J., Osborn v. Bank of U.S., 9 Wheat, at
p. 854. See Story, Comm. § 1662.)

" The Court has, I think, indicated that the phrase 'affecting ambassadors,' &c.,
includes all cases where the ambassador, &c. , is either party to the suit or is directly
affected and bound by the judgment." (Burgess, Pol. Sci. ii. 329.)

Other Representatives. — The phrase " other representatives of other countries "
is somewhat vague, but would presumably include all persons officially accredited to the
Commonwealth by foreign governments. The expression, "other countries" occurs
again in sec. 51 — i., where trade and commerce "with other countries" means trade or
commerce with persons outside the limits of the Commonwealth ; but a representative
of a country can hardly mean anything else than an accredited representative of the
government of the country. The parallel expression in sec. 51 leads to the inference
that the expression " other countries," in this section as in that, includes all countries
outside the Commonwealth, whether British or foreign.

Proge of Jurisdiction. — The mode in which the facts which give rise to jurisdiction
are to be proved is a matter of procedure, to be regulated by the Parliament. (For U.S.
cases, see Be Baiz, 135 U.S. 403: Exp. Hitz, 111 U.S. 766 ; Kent, Comm. i. 39.)

§ 323. '' In which the Commonwealth, or a Person Suing
or being Sued on Behalf of the Commonwealth, is a

Party.'

In the United States, the provision that " the judicial power shall extend . . .
to controversies in which the United States shall be a party " confers appellate
jurisdiction only.

" It scarcely seems possible to raise a reasonable doubt as to the propriety of giving
to the national courts jurisdiction of cases in which the United States are a party. It
would be a perfect novelty in the history of national jurisprudence, as well as of public
law, that a sovereign had no authority to sue in his own courts. Unless this power were
given to the United States, the enforcement of all their rights, powers, contracts, and
privileges in their sovereign capacity would be at the mercy of the States. They must
be enforced, if at all, in the State tribunals. And there would not ouly not be any
compulsory power over these courts to perform such functions, but there would not be
any means of producing uniformity in their decisions. A sovereign without the means
of enforcing civil rights, or compelling the performance, either civilly or criminally, of
public duties on the part of the citizens, would be a most extraordinaiy anomaly. It
would prostrate the Union at the feet of the States. It would compel the national
government to become a supplicant for justice before the judicature of those who were
by other parts of the Constitution placed in subordination to it." (Storj-, Comm.
§ 1674.)

This sub-section, like the others, confers a jurisdiction onl}', not a right of action.
It does not enable actions to be brought by or against the Conuuonwealth, but only
provides that, where any such action lies, the High Court shall be a competent court of
original jurisdiction. (See Con v. Deb., Melb., p. 320; and Notes, §338, infra.) The
effect of it is that whenever the Commonwealth has a right to sue— no matter what the
subject-matter or character of the suit— it can sue in the High Court ; and wherever
anybody has a right to sue the Commonwealth, he can sue in the High Court.

§§323-324.1 THE JUDICATURE. 773

The Commonwealth, being a government, possesses corporate powers, and maj' sae
in its corporate name, and may by its consent be sued. (See United States v. Maurice,
2 Brock. 109; Ableman i?. Booth, 21 How. 506.) But the Commonwealth, being the
Cro^Ti, cannot be sued except bj" its own consent. (See Kendall i*. United States, 12
Pet. 524 ; Hill i-. United States, 9 How. 386.) It has been held that the doctrine, that
the United States cannot be sued unless provision has been made by Congress, is limited
to suits against the United States directly and by name ; and that this plea cannot be
raised bj- officers or agents of the government when sued for property in their hands as
such officers or agents. (United States v. Lee, 106 U.S. 196. See Baker, Annot. Const,
p. 126.) In Great Britain, and also in the several colonies, the mode of enforcing claims
against the Crown is regulated by Statutes. Thus in Great Britain, claims against the
Crown in respect of property or contract may be made by petition of right, entitled in
the appropriate Court. (Broom's Comm. p. 234.) In most of the Australian colonies,
the procedure is by action against a nominal defendant sued on behalf of the Crown ;
and in some of the colonies the remedy extends to tort as well as contract. (See Notes,
§338, infra.)

The power of the Commonwealth to confer rights of suit against itself was the
subject of some debate in the Convention, and is dealt with under sec. 78. The juris-
diction extends, not only to cases in which the Commonwealth is a party, but to cases in
which "any person suing or being sued on behalf of the Commonwealth " is a party.
This is in order to include cases in which the Commonwealth is the real plaintiff or
defendant, but is represented in the suit by a nominal party — for instance, where an
information is filed by the Attomej'-General on behalf of the Crown, or where a nominal
defendant is, in accordance vvith statutory provision, sued on behalf of the government.
But jurisdiction is not given by this sub-section unless the Crown is really and directly
the party seeking a remedy, or against whom a remedy is sought ; it does not arise
merely because the Commonwealth has an interest in the case, or because an officer of
the Commonwealth, or a political corporation distinct from the general government of
the Commonwealth, and not acting directly on its behalf, is a party. (See Story,
Comm. § 1686; Osbom r. Bank of U.S., 9 Wheat. 855. See also remarks by Mr.
Barton, Conv, Deb., Melb., p. 1884.)

Parties. — " It may be laid down, as a rule which admits of no exception, that in
all cases under the Constitution of the United States where jurisdiction depends upon
the party, it is the party named on the record." (Story, Comm. § 1688 ; Kent, Comm.
i. 350; and see Notes, § 324, infra.) This principle seems equally applicable to this
Constitution ; from which it would seem that, in order that jurisdiction may be given
under this sub-section, either the Commonwealth must be a party on the record, or it
must appear from the record that one of the parties is suing or being sued '* on behalf of
the Commonwealth."

§ 324. " Between States, or between Residents of Different

States, or between a State and a Resident of

Another State."

The original jurisdiction of the High Court extends to " cUl mailers between States,"
&c. — words which are wide enough to include controversies of all kinds between a State
or a resident of a State on the one hand, and another State or a resident of another State
on the other hand. In cases of this class "the jurisdiction depends entirely on the
character of the parties. . . . If these be the parties, it is entirely unimportant what
may be the subject of the controversy. Be it what it may, these parties have a constita-
tional right to come into the courts of the union." (Per Marshall, C.J., Cohens r.
Virginia, 6 Wheat, at p. 378. )

CoMPARisox WITH UNITED STATES.— The whole of this provision is adapted with
important modifications from the Constitution of the United States ; and for a proper

774 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

application of the American authorities it is necessary to examine the points of difference
between the words of the two Constitutions.

The provision in the Constitution of the United States is a gift of " judicial power,"
and in 1793 it was held (Chisholm v. Georgia, 2 Dall. 419) that it enabled a State to bo
sued in assumpsit by a citizen of another State. This decision gave such intense dissatis-
faction that the eleventh amendment was passed declaring that the judicial power should
not be construed to extend to any suit brought against a State by citizens of another
State, or by aliens. Notwithstanding this amendment, however, a State can still be
sued by another State of the Union, though enjoying immunity from being sued by
citizens of such other State. The result of this distinction was that attempts were
made by States, whose citizens had claims against another State, to prosecute these
claims on behalf of their citizens ; but these attempts were defeated, it being held that a
State could not in this way create a controversy with another State. (New Hampshire
V. Louisiana, New York v. Louisiana, 108 U.S. 76 ) The provisions of this Constitution.
however, make no distinction between a plaintiff State and a plaintiff resident of that
State.

Again, though the Supreme Court of the United States has original jurisdiction in
cases where a State is a party, it has only appellate jurisdiction in cases "between
citizens of different States." Accordingly in an action of ejectment between citizens of
different States in respect of land over which both States claimed jurisdiction, it was
held that the Supreme Court had no original jurisdiction, inasmuch as a State was
neither nominally nor substantially a party ; and it was not sufficient that the State
might be consequentially affected by having to compensate its grantee. (Fowler v.
Lindsey, 3 Dall. 41 1 ; see Kent, Comm. i. 323. )

The judicial power of the United States extends to controversies " between a State,
or the citizens thereof, and foreign States, citizens, or subjects." In this Constitution
there is no such provision.

Suits against a State. — It is submitted that - notwithstanding Chisholm v.
Georgia, cited above — this sub-section, like the rest of the section, only confers a
jurisdiction, and not a right of action where no right of action existed before; that it
does not extend the category of cases in which a State, or a resident of a State, may be
sued, but merely enables certain suits, which might otherwise have been brought in
some other court, to be brought in the High Court. (See remarks of Messrs. Barton,
Symon, and Isaacs in connection with mandamus; Conv. Deb., Melb., pp. 1875-85.)
Apart from express words in the Constitution, a State would not be suable without its
own consent. This section does not appear to affect this immunity ; but an important
limitation has been put upon it by sec. 78, which provides that " in respect of matters
within the limits of the judicial power" the Federal Parliament may make laws
conferring rights to proceed against a State. The express provision that the Parliament
may confer these rights seems to show that they are not conferred by the Constitution
itself ; and there is thus a guide to the intention of the framers which was absent in tliu
Constitution of the United States. It seems, therefore, that no suit can be brought
against a State, either by another State or by a resident of another State, except (1) by
consent, expressed by legislation or otherwise, of the State sued, or (2) under a riglit
given by the Federal Parliament under sec. 78.

It has been decided in the United States that a State may waive its immunity, and
by appearing in a Federal court, in a suit in which it has an interest, does waive it.
(Clark u. Barnard, 108 U.S. 436.) And a State may be sued with its own consent.
(Hans V. Louisiana, 134 U.S. 1.) Such consent may be given on such terms and
conditions as the State chooses to impose, and may be withdrawn. {Be Ayers, 123 U.S
505 ; Railroad Co. v. Tennessee, 101 U.S. 337 ; Beers v. Arkansas, 20 How. 527.)

" When a State submits itself, without reservation, to the jurisdiction of a Court
in a particular case, the jurisdiction may be used to give full effect to what the State
has, by its act of submission, allowed to be done ; and if the law permits coercion of the

324 ]

THE JUDICATURE. 775

public officers to enforce any judgment that may be rendered, then such coercion may be
employed for that purpose. But this is very far from authorizing the courts, when a
State cannot l>e sued, to set up their jurisdiction over the officers in charge of the
public moneys, so as to control them as against the political power in their administra-
tion of the finances of the State." (Per Waite, C.J., Louisiana i-. Jumel, 107 U.S. at p.
728.)

Parties. — Jurisdiction under this sub-section depends on the character of the
parties ; and where that is the case, it has been held in the United States that only the
parties on the record must be looked to. (See Story, Comm. §§ 1685-8 ; Kent, Comm. i.
350 ; and Notes, ^ 323, snpra. )

Betweex States. —It seems that this jurisdiction, except bj- consent of the
defendant State, can only be exercised under the authority of federal legislation
<5onferring the right to sue a State. (See Notes, 9upra ; and § 338, infra. )

"The spectacle of a people submitting public controversies to the same mode of
settlement as private law suits, and acquiescing in the decisions, has set an example
which foreign nations are about to imitate, not only in internal discords, but in those
which are international." (Foster, Const, of the U.S. i. 45.)

"This power seems to be essential to the preservation of the union," says Story,
Coram. § 1679. After illustrating this from the experience of the Confederation, he
proceeds : —

" Some tribunal exercising such authority is essential to prevent an appeal to the
sword and a dissolution of the government. That it ought to be established imder the
national, rather than under the State government, or, to speak more properly, that it
can be safely established under the former only, would seem to lie a position self-evident,
and requiring no reasoning to support it. It may justly be presumed that under the
national government, in all controversies of this sort, the decision will be impartially
made accoi-ding to the principles of justice ; and all the usual and most effectual
precautions are taken to secure this impartiality^ by confiding it to the highest judicial
tribunal."' (§1681.)

In the United States, this jurisdiction has been chieflj' employed in cases of
disputed boundaries. (See opinion of the Court in Wisconsin v. Pelican Insurance Co.,
127 U. S. 265. ) It has been decided that the Supreme Court of the United States has
jurisdiction to determine questions of boundary between States, and that the juris-
diction is not defeated because of the fact that in deciding the question the court must
examine and construe compacts between States, or because the juristliction affects the
territorial limits of the political jurisdiction and sovereignty of the States. (Virginia v.
West Virginia, 1 1 Wall. 39 ; Rhode L r. Massachusetts, 12 Pet. 657 ; and see other
cases cited by Baker, Annot. Const, p. 138.)

The Courts of the United States have declined, as between States, to compel the
performance of obligations which, between independent nations, could not have been
enforced judicially, but only through the political departments. (Kentucky r. Dennison
24 How. 66 ; New York v. Louisiana, 108 U.S. 76 ; and see Wisconsin r. Pelican Ins.
Co., 127 U S. 265.)

In a recent case, it was held that the words " controversies between States " were
intended to include something more than controversies over territory or jurisdiction ;
but that the jurisdiction was of so delicate and grave a character that its exercise was
not contemplated save when the nec-essity was absolute and the matter itself properly
justiciable. To maintain jurisdiction, the controversy must arise directly Ijetween the
States, and must not be a controversy in the vindication of grievances between private
indi^-iduals. A bill by the State of Louisiana against the State of Texas, complaining
that Texas by unnecessary and unreasonable quarantine regulations was intentionally
and absolutely interdicting inter-state commerce, was held to be bad, as its gravamen
was not a special and peculiar injury such as would sustain an action by a private
person, but Louisiana presented herself in the attitude of parens pcUrm, trustee,
guardian, or representative of her citizens. Nor could the bill be sustained as a contro-
versy between a State and the citizens of another State. (Louisiana v. Texas [1899], 176
U.S. 1.)

776 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

Between Residents of Different States. — These words (and also those following
— " between a State and a resident of another State ") were only inserted at a late stage
in the Convention. (See Con v. Deb., Melb., p. 1885.) They are taken from the United
States Constitution, with the substitution of the word "residents" fcr "citizens."
The reasons for the jurisdiction being given in the United States are explained by
Story, Coram. §§ 1690-2, and are based on the advantage of giving the parties in such
cases recourse to a national and impartial tribunal.

The word "resident " is undefined, and must be interpreted according to the scope
and spirit of the Constitution. (See Notes, § 131, supra, and § 463, infra.) There are
numerous English and colonial cases defining " residence " differently for the purpose of
different enactments. Thus where residence is required for an electoral qualification,
the guiding principle is that a voter should have some local interest. (Beal v. Ford,
3 C.P.D. at p. 78.) Where jurisdiction depends upon the residence of the defendant (as
in County or District Court Acts) the principle is that of seeking out the defendant in
his own jurisdiction — in the forum rei. Here the considerations are somewhat different
from both ; the principle is that of providing a forum which is neither solely the
plaintiff's nor solely the defendant's, but belongs impartially to both. The object of the
jurisdiction, in fact, is to avoid any suggestion of partiality Avhich might arise if a
litigant with a resident in another State had no option but to resort to the courts of
that State. The jurisdiction is thus based on the existence of those local citizenships
and local patriotisms which are characteristic of a Federation. Residence in a State, for
the purposes of this section, should therefore be interpreted as involving a suggestion
of State membership, and perhaps even of domicile.

An instructive parallel expression occurs in sec. 117, where "a subject of the Queen
resident in any State " is protected from disabilities in other States. That clause as it
stood in the Bill of 1891, and also in the Adelaide draft of 1897, referred to the privileges
and immunities of "citizens " of the States (see Notes to sec. 117) ; but at the Melbourne
Convention (Debates, pp. 664-691) difficulties were raised in connection with the meaning
of the clause, and it was struck out — many members expressing the opinion that
citizenship, both of the Commonwealth and of the States, should be defined in the
Constitution. Afterwards (Debates, pp. 1750-68) Dr. Quick proposed to give the Federal
Parliament power to make laws as to " Commonwealth citizenship." Some members
thought this power unnecessary, whilst others still thought that the proper plan was to
define citizenship. On Mr. Symon's motion to reinsert a provision for protecting the
rights of citizens (Debates, pp. 1780-1802 ; and see Historical Note, sec. 117) Dr. Quick
proposed a definition of Commonwealth citizenship; but this was struck out. Consider-
able objection being made to the use of the word " citizen," the phrase " subject of the
Queen resident in any State " was substituted. It was after the adoption of that plirase
that the words "between residents," &c. (adapted from the American "between
citizens," etc.) were inserted.

It appears then that the residence in a State contemplated bj' the Constitution is
such residence as, if combined with British nationality, would constitute citizenship of
the State, in the general sense of the term. It is not meant by this that the residence
should be such as is required by the laws of the particular State for the exercise of any
political franchise, but merely that it should be of a character to identify the resident
to some extent with the corporate entity of tJie State.

For the meaning of citizenship of a State in the United States, see Storj', Coram.
§§ 1693-5 ; Kent, Comm. 1. 345. In its broad sense, the word " citizen " is synonymous
■with " subject" and " inhabitant," and is understood as conveying the idea of membership
of a nation and nothing more. (Minor v. Happerset, 2] Wall. 162.)

The question arises whether, in order to give jurisdiction under this sub-section, it
is necessary that all the plaintiffs should be residents in a different State or States
from all the defendants. The American decisions turn not only on the words in the
Constitution, " between citizens of different States," but also ou the more precise words

§324]

THE JUDICATURE. 777

of the Jucliciarj' Act, which give the Circuit Courts jurisdiction " where the suit is
between a citizen of the State where the suit is brought, and a citizen of another State."
It has been held that those words mean that each distinct interest must be representJed
by persons all of whom are entitled to sue, or liable to be sued, in the Federal Courts.
(Strawbridge i-. Curtiss, 3 Cranch, 'ZQl ; Coal Co. v. Blatchford, 11 Wall. 172.) ^Vhere
jurisdiction depends on the parties, the parties to the record are meant, and not the
parties in interest. (See Note, § 323, fupra.) Trustees and executors are no exception ;
their residence, and not the residence of the beneficiaries whom they represent in the
suit, is materiaL (Coal Co. r. Blatchford, 11 Wall. 172.) In the United States, an
allegation that the plaintiffs "as such executors" were citizens of a State was held
insufficient, inasmuch as citizenship was a personal, not an official quality. (Amory v.
Amory, 95 U.S. 186.) Where, however, a party to the record is whoUy formal, and has
no interest in or control over the suit, but is a mere "conduit" — as where a sheriff's
bond had to be sued out in the name of the Governor of the State— the residence of the
party interested, and not of the formal party, is material. (McNutt r. Bland, 2 How.
9. ) And jurisdiction cannot be ousted by the joinder of a mere nominal defendant, who
has not the requisite character. (Carneal r. Banks, 10 Wheat. 181 ; Walden v. Skinner,
101 U.S. 577 ; Kent, Comm. i. .346.) Where jurisdiction depends on the residence of
the parties, the jurisdiction must appear on the record. (Bingham v. Cabot, 3 DalL
382 ; Abercrombie r. Dupuis, 1 Cranch 343 ; Kent, Comm. i. 344. )

The federal courts have no jurisdiction of a suit between a resident of a territory
and a resident of a State : nor where a resident of the federal district' is a party. (New
Orleans v. Winter, 1 Wheat. 91 ; Barney v. Baltimore, 6 Wall. 280.)

Cha>"ge of Residexce. — If a resident of one State changes his domicile to another
Stat«, with a bona fide intention to reside there, even though his object was to avail
himself of the federal jurisdiction, he may sue as a resident of the latter State. (Jones
V. League, 18 How. 76 ; Kent, Comm. i. 345.) But a merely colourable conveyance will
not give jurisdiction. (/6. )

Reside.nce of Corporatiox. — In the United States, it was held in some early cases
that a corpoi-ation aggregate was not, in its corporate capacity, a citizen, and that its
right to sue in the federal courts depended on the citizenship of its members, which
must be averred on the record. (Hope Ins. Co. v. Boardmam, 5 Cranch 57 ; Bank of
U. S. V. Deveaux, 5 Cranch 61. ) These decisions were re^^ewed and overruled in Loiiis^ille
R. Co. V. Letson, 2 How. 497, where it was held that a corpoi-ation created and doing
business in a State is an inhabitant of the State, capable as being treated as a citizen for
all purposes of jurisdiction. And the mischief of the earlier decision is now whittled
away by a legal fiction ; the members of a corporation being conclusively presumed, for
purposes of jurisdiction, to be citizens of the State in which the corporation was created.
(Steamship Co. v. Tugman, 106 U.S. 118 ; Memphis, &c., R.R. Co. r. Alabama, 107 U.S.
581 ; Kent, Comm. i. 346.) " It is well settled that a corporation created by a State is
a citizen of the State, within the meaning of those pro\asions of the Constitution and
statutes of the United States, which define the jurisdiction of the federal courts."
(Wisconsin v. Pelican Ins. Co. 127 U.S. p. 287.) But such a corporation is not a citizen
of the State, so as to be "entitled to all privileges and immunities of citizens in the
several States." (Blake v. McClung, 172 U.S. 239.)

A corporation may clearly be a " resident " within the meaning of this section.
" Residents " are resident j^rsons ; and by the (Imperial) Interpretation Act, 1889
(which governs this constitution), the expression "person," unless the contrary intention
appears, includes any body of persons corporate or unincorporate. (Sec. 19. )

According to writers on International Law, supported by English decisions, the
residence of an incorporated company is determined by the place in which its
administrative business is chiefly carried on. (See Westlake, Priv. Internat. Law, 285 ;
Lindley, Company Law, p. 910.)

778 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

Betwekn a State and a Resident of Another State. — The object of this
jurisdiction also is to avoid partiality, or the suspicion of partiality. (Story, Comm. §
1682; Kent, Comm. i. 32.3; Wisconsin v. Pelican Ins. Co., 127 U.S. p. 265.) In that
case it was held that similar words do not give federal jurisdiction in an action by a
State upon a judgment recovered by it, in one of its own courts, against a citizen of
another State. " The grant is of ' judicial power ' and was not intended to confer upon
the courts of the United States jurisdiction of a suit or prosecution by the one State, of
such a nature that it could not, on the settled principles of public and international law,
be entertained by the judiciary of the other State at all." (Per Gray, J., at p. 289.)

"The courts of no country execute the penal laws of another." (Per Marshall,
C.J., The Antelope, 10 Wheat. 12.3.) This rule "applies not only to prosecutions and
sentences for crimes and misdemeanours, but to all suits in favour of the State for the
recovery of pecuniary penalties for any violation of statutes for the protection of its
revenue or other municipal laws, and to all judgments for such penalties." (Wisconsin
V. Pelican Ins. Co., cited above.)

§ 325. " In which a VTrit of Mandamus or Prohibition, or

an Injunction, is Sought Against an Officer of

the Commonwealth."

The Convention was in considerable doubt as to whether this sub-section was
necessary or not. It was included (except so far as injunctions are concerned) in the
Bill of 1891 ; and it reappeared in the Adelaide draft of 1897. At Melbourne (Debates,
pp. .320-1) it was omitted, at Mr. Barton's suggestion, on the ground that the words
were xinnecessary, and might operate as a limitation. On reconsideration (Debates,
pp. 1875-85) it was thought advisable to restore the words, owing to principles laid down
in American decisions, which show that the power of the Supreme Court of the United
States to grant a writ of mandamus is very limited.

American Decisions. — In order to explain the reasons for inserting the words, and
to answer the objections which were urged against them, it is necessary first to examine
the American decisions. The Constitution of the United States gives original j urisdiction
to the Supreme Court only in " cases affecting ambassadors, other public ministers, and
consuls, and those in which a State shall be party." Nor has Congress anj' power what-
ever to extend the original jurisdiction of the Supreme Court. The Judiciary Act of
1789, which created the Federal Courts, after declaring that the Supreme Court should
have appellate jurisdiction from the Circuit Courts and Courts of the several States, in
certain cases, provided that it should have power to issue writs of mandamus, in cases
warranted by the principles and usages of law, " to any courts appointed, or persons
holding office, under the authority of the United States." (See Re Green, 141 U.S. 325.)
In Marbury v. Madison, 1 Cranch 137, this Act was held to be uuconstitutional so far
as it purported to give the Supreme Court power to issue a mandamus against an officer
of the United States (a proceeding which involves the exercise of original jurisdiction)
in cases not within the original jurisdiction granted by the Constitution. Marbury had
been duly appointed a justice of the peace, and his commission had been dulj- signed and
sealed ; but the Secretary of State refused to issue it. The Court held (see Kent, i. 322)
that this was a violation of a vested legal right, for which the plaintiff was entitled to a
remedy by mandamus ; but held also that the mandamus could not constitutionally
issue from the Supreme CJourt.

" To enable this Court to issue a mandamus, it must be shown to be an exercise of
appellate jurisdiction or to be necessary to enable them to exercise appellate jurisdiction.
. . . It is the essential criterion of appellate jurisdiction, that it revises and corrects
the proceedings in a cause already instituted, and does not create that cause. Although,
therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer
for the delivery of a paper, is in effect the same as to sustain an original action for that

^■25.] THE JUDICATURE.

paper, and therefore seems not to belong to appellate, but to original jurisdiction.
Neither is it necessary, in such a case as this, to enable the court to exercise its appellate
jurisdiction. The authority, therefore, given to the Supreme Court, by the Act
establishing the judicial courts of the Unitetl States, to issue writs of mandamus to
public officers, appears not to be waiTanted by the Constitution." (Per Marshall,
C.J., Marbury i: Madison, 1 Cranch at p. 175.)

The principles established in Marbury v. Madison are very clear. When a writ of
mandamus is sought, the first question is whether " the principles and usages of law "
warrant the is.sue of a mandamus as the proper remedy in the ease ; and if that question
is answered in the affirmative, the question remains whether the Supreme Court has
jurisdiction over the parties or the subject-matter. If the mandamus is sought against a
non-judicial officer, it is an exercise of original jurisdiction, and the court can only act
if the matter comes within the scope of its original jurisdiction. If the mandamus is
sought against a court, it is an exercise of appellate jurisdiction, and the court can only
act if the matter comes within the scope of its appellate jurisdiction.

It is submitted that, in the absence of this sub-section, the American decisions
would be completely applicable to this Constitution, and that no mandamus could issue
from the High Court against a non-judicial officer of the Commonwealth except in cases
which came within the scope of the original jurisdiction of the Court. There is, of c-ourse,
the difference that the original jurisdiction of the High Court under this Constitution is
wider than that of the Supreme Court of the United States, and that this jurisdiction
can, within certain limits, be further enlarged by the Parliament ; but that is a difference
which does not affect the principle. Tliat principle is that the original jurisdiction of
the High Court is limited, and that its power to grant mandamus, prohibition, or
injunction — or, for the matter of that, any other remedj- whatever — is ordinarily
confinetl, so far as that remedy involves an exercise of original jurisdiction, within
precisely the same limits. The difference made by this sub-section is that whenever any
person seeks any one of those three reme«lies against an officer of the CommonicecUth, the
High Court will have original jurisdiction in the matter — whether or not it is a matter
■ • arising imder a treaty," or " affecting consuls," or " between States," &c.

Objectioxs Answered.— It was suggested by Mr. Isaacs (Con v. Debates, Melb.,
pp. 1879, 1882) that the words were unnecessary, inasmuch as the jurisdiction proposed
o be given was already covered by sub-sec. iii., which gave original jurisdiction where
" the Commonwealth, or a pei-son suing or being sued on behalf of the Commonwealth,
is a party." It seems clear, however, that that sub-section only applies where the
Commonwealth is tlie real party, and some pei-son sues or is sued as representing the
Commonwealth. (See Note, § 323, supra ; and Mr. Barton's remarks, Conv^. Deb.,
Melb., p. 1884.) In applications for mandamus, that is never the case, because a
mandamus cannot issue against the Crown, or against anj- person representing the Crown.
(See Note on Mandamus, infra.) A suit "against an officer of the Commonwealth " is
a very different thing to a suit against "a person sued on behalf of the Commonwealth."

Another objection urged was that the mention of these particular remedies might
raise the implication that the High Court had no jurisdiction i»-ith respect to other
remedies not mentioned — such as writs of habeas corpus, certiorari, &c. This argument
is practically answered by the foregoing statement of the purport of the provision. The
High Coiu-t, apart from this sub-section, would have had power to grant the remedies
of mandamus, &c., whenever it was incident or necessary to the exercise of their
original jurisdiction. This sub-section expressly extends that jurisdiction in the case
of three remedies '"which are specially in their nature addressed to persons who may be
carrying out the provisions of the statute law " (Conv. Deb., Melb.. 1885); but as
regards all other remedies it leaves the jurisdiction of the court unaltered. That
jurisdiction, it is submitted, will be just as extensive as it is in the United States.

" All the courts of the United States have power to issue writs of •icire fa'-iax, habeas
corpus, and all other writs not specially provided for by statute, which may be necessary
for the exercise of their respective jurisdictions, and agreeable to the principles and

780 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

usages of law. So the judges of the Supreme Court, as well as the judges of the District
Courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprison-
ment occurring under or by colour of the authority of the United States, or for acts
done, or omitted to be done, in pursuance of a law of the United States, or of a judicial
authority of any court or judge thereof." {Kent, Comm. i. 300 ; and see Story, Comm.
§ 1341.)

The well-recognized principle is, that in the exercise of its lawful jurisdiction the
court may employ all appropriate remedies ; and that principle is not affected by the
fact that in a certain class of cases the nature of the remedy sought is made the ground
of jurisdiction.

Another objection urged was that the sub-section might enable the judiciary to
interfere in political matters, and control the executive acts of the government. A
sufficient answer to this is that this sub-section, like all the others, confers a jurisdiction
only, not a right of action. It provides that resort may be had to the High Court when
a mandamus, &c., is sought against an officer of the Commonwealth; but, as was
explained by Mr. Symon, " it does not give any right to get mandamus or prohibition. . . .
It merely gives a jurisdiction in certain applications." (Conv. Deb., Melb., p. 1877.)

General Jurisdiction in Mandamus, &c. — Two things must combine in order to^
give jurisdiction under this sub-section in any matter : — (1) That a mandamus, prohi-
bition, or injunction is sought ; and (2) that such remedy is sought against an officer of
the Commonwealth. If the nature of the remedy sought, and the character of the
party against whom it is sought, answer this description, the High Court has original
jurisdiction, irrespective of what the subject of the suit may be.

It must not be supposed, however, that the High Court has no power to issue
mandamus, prohibition, or injunction except under this sub-section. Whenever the
Court has jurisdiction, original or appellate, in any matter, it has power to grant all
remedies necessary or appropriate to the exercise of that jurisdiction. (See United
States cases cited, s^vpra.) That is to say, in cases where the person against whom a
mandamus, prohibition, or injunction is sought is not an officer of the Commonwealth,
then if the character of the parties or the subject-matter of the suit give the High Court
original jurisdiction in the matter, the High Court has authority to grant any such
writ or remedy in the matter as may be necessary to the exercise of that jurisdiction.

A Writ of Mandamus or Prohibition. — A writ is a document in the Queen's
name, and under the seal of the Crown, or of a court or officer of the Crown, command-
ing the person to whom it is addressed to do or forbear from doing some act. (Sweet's
Law Dictionary.)

Writs are either prerogative or of right. A prerogative writ is one which issues,
not of strict right, but in the discretion of the Court. (Shortt, Mandamus, p. 223.)

Mandamus and prohibition are prerogative writs. There are other prerogative
writs known to English law, such as habeas corpus, certiorari, procedendo, and q\uy
warranto. The mention in this section of mandamus and prohibition alone is not meant
to exclude or limit any jurisdiction which the High Court may otherwise have with
regard to other writs ; the object was to make it perfectly clear that the courts should
have original jurisdiction in every case in which either of these writs, or an injunction,
was sought against an officer of the Commonwealth : these three proceedings being
selected because they are ' ' specially in their nature addressed to persons who may be
carrying out the provisions of the Statute law." (Conv. Deb., Melb., pp. 1876-85.)

Mandamus. — " A writ of mandamus is, in general, a command issuing in the
King's name from the court of King's Bench, and directed to any person, corponi-
tion, or inferior court of judicature within the King's dominions, requiring them to do
some particular thing therein specified, which appertains to their office and duty, and
which the court of King's Bench has previously determined, or at least supposes, to be
consonant to right and justice. It is a high prerogative writ, of a most extensive
remedial nature : ... it issues in all cases where the party hath a right to have
anything done, and hath no other specific means of compelling its performance.
(Blackstone, Comm. iii, 110. See also Steph. Comm. iii. 615 ; Shortt, Mandamus, 223.>

^325.]

THE JUDICATURE. 781

Besides the prerogative writ of mandamus, there are various kinds of statutory
mandamus ; especialh' the mandamus in a civil action, first introduced by the (Imperial)
Common Law Procediire Act, 1854, and subsequently adopted in the colonial Common
Law Procedure Acts. (See Steph. Comm. iii. 619.) This sub-section appears chiefly to
contemplate the prerogative writ ; biit it is submitted that it is wide enough to include
any statutory mandamus which may be authorized by federal legislation.

In the colonies, the courts which exercise a jurisdiction corresponding to that of the
<)ueen's Bench ha%'e always exercised the right of issuing the prerogative writ of
mandamus. It appeai-s that, in the absence of prohibitive Imperial legislation, the
Court of Queen's Bench can exercise jurisdiction in every part of the Queens Dominions,
even in colonies in which an independent legislature has been established. " Writs not
ministerially directed (sometimes called prerogative writs, because they are supposed to
issue on the part of the King), such as writs of mandanuis, prohibition, habeas corpus,
certiorari, are restrained by no clause in the constitution of Berwick ; upon a proper
case they may issue to every domiHion of the Crotcn of England. There is no doubt as to
the power of this court (i.e., the court of King's Bench), where the place is under the
subjection of the Crown of England ; the onlj- question is as to th6 propriety." (Per
Mansfield, C.J., Rex v. Cowle, 2 Burr. 855.) In 1861, a writ of haiteas corpus ad
-■iubjiciendum was issued from the court of Queen's Bench to certain officers in Upper
Canada. (Re John Anderson, 30 L.J.Q.B. 129.)

A mandamus only lies where the applicant has a legal right to the performance of
some public duty, and where there is no other adequate remedy. (See Shortt,
.Mandamus.)

The mandamus provided for in this sub-section is only " against officers of the
Commonwealth." Without expi-ess words, the High Court has original jurisdiction to
issue a mandamus against any person, corporation, or public officer in any matter coming
within the scope of its original jurisdiction ; and the power to issue a mandamus to any
State or Federal Court is incident to the general appellate jurisdiction of the High
Court. (Marbury v. Madison, 1 Cranch 137 ; and see notes, »upra.)

This sub-section merely gives a jurisdiction, and docs not confer any right to a
mandamus in cases where it did not exist before. (Conv. Deb., Melb., pp. 1875-85.)
Consequently the jurisdiction where a mandamus is sought against an officer of the
Commonwealth must be read in the light of established authority. It is a clear principle
of English law that a mandamus is never grantetl against the Crown, or the officers or
servants of the Crown as such. " That there can be no mandamus to the Sovereign there
can be no doubt, both because there would be an incongruity in the Queen commanding
herself to do an act, and also because the disobedience to a writ of mandamus is to be
enforced by attachment." (Per Denman, C.J., Reg. v. Powell, 1 Q.B. 361.) The
principle, which is laid down clearly in English, Colonial, and American cases, is this :
that a mandamus will lie against an officer of the Crown to compel him to perform an
act which he is under a statutory or other legal duty to perform ; but not to compel him
to perform an act in which he has any discretion, or in which he is subject to the
commands of the Crown. Thus, in Reg. r. Lords Commissioners of the Treasury, L.R.
7 Q.B. 387, it was held that no mandamus lies to the Lords of the Treasury to compel
them to issue a Treasury minute authorizing certain payments.

"I take it, with reference to that jurisdiction, we must start with this unquestionable
principle, that when a duty has to be performed (if I may use that expression) by the
Crown, this court cannot claim even in appearance to have any power to command the
Crown ; the thing is out of the question. Over the sovereign we can have no power. In
like manner where the parties are acting as servants of the Crown, and are amenable to
the Crown, whose servants they are, they are not amenable to us in the exercise of our
prerogative jurisdiction. (Per Cockbum, C.J., at p. 394.)

"The question remains whether there is any statutable obligation cast upon the
Lords of the Treasury to do what we are asked to compel them to do by mandamus,
namely, to issue a minute to pay that money : because it seems to me clear that we

782 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

ought to grant a mandamus if there is such a statutory' obligation. . . . The general
principle, applicable not merely to mandamus but running all through the law, is thai
where an obligation is cast upon the principal and not upon the servant, we cannot
enforce it against the servant as long as he is merely acting as servant. Where tlu-
intention of the legislature shows that Her Majest}- should be advised to do a thing, and
where the obligation, if I may use the word, is cast upon the servants of Her Majesty so
to advise, we cannot enforce that obligation against the servants by mandamus merelv
because the sovereign happens to be the principal." (Per Blackburn, J., at p. 397.)

In Exp. Mackenzie, 6 SCR. (N.S.W.) 306, the Supreme Court of New South
Wales refused to issue a mandamus against the Colonial Treasurer to compel him to
issue a warrant for the pa^'nient of certain moneys voted by Parliament. In Exp. Cox,
14 S.C.R. (N.S.W.) 287, a mandamus against the Secretary for Mines commanding him
to hand over to the applicant a mineral lease executed by the Governor, under the
Mining Act, was refused by the same court on the ground that the Act did not impose
on the Secretary for Mines any such duty. (See also Exp. Krefft, 14 S.C.R. [N. S.W.J
446.) In Exp. Gibson, 2 N.S.W. L.R. 202, the Supreme Court of New South Wales
hold that a mandamus would lie against the Colonial Treasurer for the issue of a license
under the Licensing Act of 1862, on the ground that the Act left the Treasurer no
discretion ; but the court in its own discretion refused the mandamus.

The American cases are to exactly the same effect, and decide that a mandamus will
lie to compel the performance of a merely ministerial duty, but not of a discretionary
duty. Thus in U.S. ex rel. Boynton v. Blaine, 139 U.S. 306, the principle was stated
by the Court as follows : —

" The writ of mandamus cannot issue in a case where its effect is to direct or control
the head of an Executive department in the discharge of an executive duty involving the
exercise of judgment or discretion. (U.S. ex rel. Redfield v. Windom, 137 U.S. 636,
644.) When by special statute, or otherwise, a mere ministerial duty is imposed upon
the executive officers of the Government ; that is, a service which they are bound to
perform without further question ; then, if they refuse, the mandamus may be issued to
compel them. (U.S ex rel. Dunlap v. Black, 128 U.S. 40, 48.) The writ goes to compel
a party to do that which it is his duty to do without it. It confers no new authority,
and the party to be coerced must have the power to perform the act." (Brownsville
Commissioners v. Loague, 129 U.S. 49.3, 501.)

So in Decatur v. Paulding, 14 Pet. 497, it was held that a mandamus would not lie
against the Secretary of the Navy to compel him to sign a warrant for payment. (See
Brashear v. Mason, 6 How. 92.) No power can be asserted by the Supreme Court of the
United States " to command the withdrawal of a sum or sums of money from the Treasury
of the United States to be applied in satisfaction of disputed or controverted claims
against the United States." (U.S. ex rel. Goodrich v. Guthrie, 17 How. 284. See Kent,
Comm. i. 322.) Where a public officer refuses to perform a mere ministerial duty,
mandamus is the proper remedy. (Roberts v. United States, 176 U.S. 221.)

Prohibition. — " The writ of prohibition issues out of a superior court of law,
and is directed to the judge of an inferior court, or the parties to a suit therein, or both
conjointly, requiring that the proceedings which have been commenced therein l)e either
conditionally stayed or peremptorily stopped. The object of the writ is the keeping
of the court to which it is directed within its proper jurisdiction, or to repress the
assumption of authority by any pretended court." (Broom, Com. Law, p. 216. See
also Blackstone Comm. iii. 112 ; Shortt, Mandamus, &c., p. 426.) The general rule is that
prohibition only lies where the inferior tribunal acts either without jurisdiction, or in
excess of its jurisdiction, or where its procedure has violated the rules of justice. (See
Shortt, 436)

The writ of prohibition will issue, not only to the regular Courts, but to various
public bodies exercising powers of a judicial nature — such, for instance, as the Tithe
Commissioners and the Railway Commissioners in England. (See Shortt, p. 43.3.) In
a case relating to the Local Government Board, tliough the power to prohibit was not
decided, Brett, L.J., observed :— " I think I am entitled to say this, that my view of
the power of prohibition at the present day is that the Court should not be chary of

§325.] THE JUDICATURE. 78a

tixercising it, and that wherever the legislature entrusts to any body of persons, other
than to the superior courts, the power of imposing an obligation upon individuals, the
Court ought to exercise, as widel}- as they can, the power of controlling those bodies of
persons, if those persons admittedly attempt to exercise powers beyond the powers given
to them by Act of Parliament."' (Reg. v. Local Government Board, 10 Q.B.D. 321.)
But a prohibition will only be granted where the proceedings to be prohibited are of a
judicial character. (Shortt, p. 439.) Thus it may be argued that prohibition will lie
against the Inter-State Commission when acting in its judicial capacity.

Seeing that a writ of prohibition lies against the parties to a suit, as well as against
the judge, it would appear that where an " officer of the Commonwealth " is partj" to a
suit in a State court, a prohibition may issue against him out of the High Court, on the
suit of the proper party. It would seem that a prohibition directed to the judge of an
inferior court is rather an exercise of appellate than of original jurisdiction, inasmuch as
it involves the assumption of an authority to control and revise, in certain respects, the
proceedings of the inferior court. So it has been held in the United States that a
writ of prohibition cannot issue from the Supreme Court where there is no appellate
power given by law, nor any special power to issue the writ. {Exp. Gordon, 1 Black,
503.) And the Judiciary Act of 1789 authorizes the Supreme Court to issue prohibitions
to the federal District Courts when proceeding as courts of Admiralty. (Exp. Christ}',
3 How. 292 ; Exp. Graham, 10 Wall. 541.) This jurisdiction could not have been
conferred if a prohibition had been thought to involve the exercise of original juris-
diction, because the Supreme Court of the United States has no original jurisdiction in
Admiralty cases.

But whether a writ of prohibition be regarded as an original or an appellate
proceeding seems immaterial under this Constitution. If appellate, the jurisdiction to
issue prohibitions to all federal courts, or courts of federal jurisdiction, is given by s. 73 ;
if original, it would seem that the justices of such courts are "officers of the Common-
wealth " within the meaning of this section.

Ixjrscnoy. — An injunction is a remedy of an equitable nature. It used to be "a
writ remedial, issuing out of a court of Equity, in those cases in which a plaintiflF is
entitled to eiiuitable relief, by restraining the commission or continuance of some act of
the defendant." (Joyce on Injunctions, p. 1.) Injunctions are also issued in some cases
by courts of common law, acting on equitable principles. The writ of injunction is now
generally abolished, injunctions being obtained by order ; though the writ of injunction
survives in the common law courts of those colonies where the old Common Law
Procedure Acts are still in force.

The necessity for the mention of injunctions here is not quite apparent. An
injunction is on a different footing altogether from mandamus and prohibition ; it is an
ordinary remedy in private suits between party and party. It was probably added
because of the analog}- which exists, in effect, between a mandamus and an injunction.

Is Sought. — The Constitution gives original jurisdiction to the High Court in all
matters in which a mandamus, prohibition, or injunction "is sought" against the
Commonwealth. It does not follow, however, that the plaintiff in any suit against an
officer of the Commonwealth in which the substantial relief sought does not come within
this sub-section can bring the proceeding within the jurisdiction of the High Court by
adding an untenable claim for a mandamus, prohibition, or injunction. It is submitted
that in such a case the same principle would apply as when a plaintiff endeavours to
bring a common law dispute into a Court of Equity by alleging an untenable equity.
(See Want r. Moss, 12 N.S. W. L.R. Eq. at p. 108.)

Agaixst an Officer of the Commox wealth.— The ministers of State are officers
appointed to administer Departments of State (sec. 64), and are clearly " officers of the
Commonwealth." So are officers of the transferred departments who are retained in the
service of the Commonwealth (sec. 84). So are the "officers of the Executive Govern-

784 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

ment of the Commonwealth " mentioned in sec. 67. And so also, it is submitted, arc the
members of the Inter-State Commission, and even the Justices of the High Court and of
the other federal courts. It is not clear whether the Judges of a State Court invested
with federal jurisdiction can be called, in relation to the duties so imposed upon them,
" officers of the Commonwealth." The Commonwealth investiture acts upon the court ;
the Judges of that Court are appointed, removed, controlled, and paid by the States
alone. They are offioers of the States exercising functions conferred on them by the
Commonwealth.

For the term "officer of the United States" see Robb v. Connolly, 111 U.S. 624.
" An office is a public station, or employment, conferred by the appointment of govern-
ment. The term embraces the ideas of tenure, duration, emolument, and duties."
{United States v. Hartwell, 6 Wall, at p. 393. )

This section does not confer any right of action against officers of the Common-
wealth. The High Court is given jurisdiction only ; it has to determine in each case,
according to the "principles of law, whether an action lies. (See Notes, above.) The
principles that no action lies against the Crown except by its consent, given by legislation
or otherwise, and that no action lies against a judge for anything done in his judicial
capacity, are not aiTected.

§ 326. "The High Court Shall Have Original
Jurisdiction.*'

What is given by this section is jurisdiction merely, not a right of action. If a
plaintiff has a legal claim which comes within any of the classes named, the section
gives him the right to prosecute his suit in the High Court, and gives the High Court
power to entertain his suit ; but it does not affect his right to relief. (See notes, §§
323-3-24: supra.)

The section confers a jurisdiction on the High Court, but it does not take away any
jurisdiction from the State Courts. It does not provide that the jurisdiction of the
High Court, or of the federal courts, shall be exclusive ; though sec. 77 enables the
Parliament to make the jurisdiction of any federal court exclusive of the jurisdiction of
the State courts to any extent which may be desired. In the absence of such federal
legislation, there will be concurrent jurisdiction over all matters within this section, so
far as they also come within the jurisdiction of any court of a State. There may,
however, be some cases— such as criminal offences against the Constitution or federal
laws — in which the jurisdiction is necessarily exclusive. "It is only in those cases
where, previous to the Constitution, State tribunals possessed jurisdiction independent
of national authority that they can now constitutionally exercise a concurrent jurisdic-
tion." (Story, Comm. § 1754 ; Kent, Comm. i. 319. See also Federalist, No. 82 ; Story,
§§ 1748-54 ; Kent, i. ,395-404.)

The gift of original jurisdiction does not exclude the appellate jurisdiction of the
High Court in cases mentioned in this section. The words of the Constitution of the
United States have been construed to give appellate but not original jurisdiction in some
cases, and original but not appellate jurisdiction in others. (See Story, Conmi. §§ 1706-
21 ; Kent, Comm. i. 318.) The reasoning by which this interpretation was arrived at
has no application to this Constitution, the extent of the appellate jurisdiction being
clearly defined. In the Bill of 1891, and also in the Adelaide draft of 1897, the words
were " shall have original as well as appellate jurisdiction;" but at Melbourne, after
the fourth Report, the words in italics were struck out at the instance of the Drafting
Committee, as being unnecessary.

It has been held in the United States that the jurisdiction of a federal court will
not be presumed, as in the case of a common law English Court, or American State
court ; but that the record must show the jurisdiction affirmatively. (Dred Scott cftBC,
19 How. 393 ; Exp. Smith, 94 U.S. 455.) The consent of parties cannot give jurisdiction

^ 326.]

THE JUDICATURE. 785

"where it does not exist (Mansfield, &c., R. Co. v. Swan, 111 U.S. 379 ; and see Bae.
Abr., Courts (B) ; Broom's Comm. 43). But the parties may admit facts showing
jurisdiction. (Railway Co. i?. Ramsey, 22 Wall. 322.)

" Objections to the jurisdiction of the court below, when they go to the subject-
matter of the controversy, and not to the form merely of its presentation or to the
character of the relief prayed, may be taken at any time. They are not waived because
they were not made in the lower court." (Boom Co. v. Patterson, 98 U.S. at p. 406.)

Where the original jurisdiction of the Court is invoked, it must appear in the
declaration or bill of the party suing that the case is one of federal jurisdiction. (Metcalf
r. Watertown, 128 U.S. 586 ; Colorado Central Mining Co. v. Turck, 1.50 U.S. 138.)

Common Law .Titrisdiction. — The great question whether there is a common law
of the Commonwealth involves three distinct enquiries : (1) whether the common law, as
existing in the several States, is a " law of the Commonwealth ; " (2) whether there is a
federal jurisdiction over common law offences ; (3) whether there is a common law
federal jurisdiction in civil cases.

(1) /.« the Common Law a Law of the Co;nnjOH»cea/M .''—In the United States the
federal courts follow the decisions of the highest court of a State in questions concerning
merely the laws of that State, and only claim a right of " independent interpretation "
where the law of the Union is involved. Accordingly the question whether the common
law is United States law has arisen in connection with the question whether the United
Stat€S judiciary, in the exercise of its jurisdiction, has the right of independent
interpretation of the law. To this question the Supreme Court of the United States —
true to its character as a federal, not a national court — has given the following answer : —

" It has asserted this right in all cases in which jurisdiction is established by the
character of the subject matter of the suit ; but when jurisdiction is based solely upon
the character of the parties to the suit, it has enunciated the principle that the United
States Courts, in interpreting the local law which governs the case, must follow the
interpretation placed upon the law by the State court of highest instance This doctrine
rests upon the assumption that all purely State law is finally interpreted by the State
courts, and that the common law is purely State law (Wheaton v. Peters, 8 Pet. 591),
i.e., that the United States has no common law. The court has not itself been able to
hold to this doctrine in its practice. In man}' cases where the jurisdiction of the United
States court.^ rests wholly upon the character of the parties to the suit, it has rendered
decisions contradicting the (lecisions of the liighest courts of the States concerned. Such
action can be rationally explained only upon the theory that the United States has a
common law ; that the ^United States courts are quite as independent in their
interpretation of this common law as in the interpretation of the Constitution, statutes,
and treaties, of the United States ; and that, in man}- cases where the jurisdiction of
the United States court rests apparently only upon the character of the parties to the
suit, the question involved is one of United States common law." (Burgess, Pol. Sci. ii.
328 ; see also Kent, Comm. i. 342, notes.)

This test of the existence of a federal common law is wholly inapplicable to the
Commonwealth, because the High Court, as a national and not a federal court of appeal,
has not onl}- the right, but the duty of " independent interpretation " of the common
law in all cases that come before it In the United States, the decision of the courts of
each State being final as to what the common law of the State is, the common law in
one State may come in time to be widely different from the common law in another
State. Throughout the Commonwealth of Australia, the unlimited appellate jurisdiction
of the High Court will make it -subject to reWew by the Privy Council — the
final arbiter of the common law in all the States. The decisions of the High Court
will be binding on the courts of the States ; and thus the rules of the common law will
Ije— as they always have been — the same in all the States. In this sense, that the
common law in all the States is the same, it may certainly be said that there is a common
law of the Commonwealth.

(2.) Jurisdiction over Common Law Ofenees. —This question has been the subject of
much discussion in the United States, chiefly in relation to criminal cases. In the case
of United States v. Wori-all, 2 Dall. 3S4 (cited Kent, I. 331), the question arose whether

786 COMMENTARIES ON THE CONSTITUTION. [Sec. 75.

an indictment would lie in a Circuit Court for an attempt to bribe the Commissioner of
the Revenue. Congress liad provided by law for the punishment of various crimes, and
even for the punishment of bribery in the case of certain public officers ; but in the case
of the Commissioner of the Revenue, the Act of Congress did not create or declare the
offence. Bribery of a public officer was a common law offence, but the Constitution
contained no reference to a common law authority ; and though Congress had power to
make such an act criminal, it had not done so. The question arose whether it was an
offence arising under the Constitution or laws of the United States.

" The Court were divided in opinion on this question. In the opinion of the Circuit
Judge, an indictment at common law could not be sustained in the Circuit Court. It
was admitted, that Congress were authorized to define and punish the crime of bi-iberj- ;
but as the act charged as an offence in the indictment had not been declared by law to
be criminal, the courts of the United States could not sustain a criminal prosecution for
it. The United States, in their national capacity, have no conmion law, and their courts
have not anj' common law jurisdiction in criminal cases, and Congress have not provided
by law for the offence contained in the indictment ; and until they defined the offence,
and prescribed the punishment, he thought the court had not jurisdiction of it. The
District Judge was of a different opinion, and he held that the United States were
constitutionally possessed of a common-law power to punish misdemeanours, and the
power might have been exercised by Congress in the form of a law, or it might be
enforced in the course of a judicial proceeding. The offence in question was one against
the well-being of the United States, and from its very nature cognizable under tlieir
authority. This case settled nothing, as the court were divided ; but it contained
some of the principal arguments on each side of this nice and interesting constitutional
question." (Kent, Comm. i. 332-3.)

In 1807 the question came before the Supreme Court of the United States in the
case of United States ?'. Hudson and Goodwin, 7 Cranch 32. The defendants had been
indicted in a Circuit Court for a libel on the President of the United States, and the
question was whether there was a common law jurisdiction.

"A majority of the Supreme Court decided, that the circuit courts could not
exercise a common law jurisdiction in criminal cases. Of all the courts which the United
States, under their general powers, might constitute, the Supreme Court was the only
one that possessed jurisdiction derived immediately from the Constitution. All other
courts created by the general government possessed no jurisdiction but what was given
them by the power that created them, and could be invested with none but what the
power ceded to the general government would authorize them to confer ; and the juris-
diction claimed in that case has not been conferred by any legislative act. When a
court is created, and its operations confined to certain specific objects, it could not
assume a more extended jurisdiction. Certain implied powerg must necessarily result t&
the courts of justice from the nature of their institution, but jurisdiction of crimen
against the State was not one of them. ... To exercise criminal jurisdiction in
common-law cases was not within their implied powers, and it was necessary for Congress
to make the act a crime, to affix a punishment for it, and to declare the court which
.should have jurisdiction." (Kent, Comm. i. 334-5.)

In both the above cases it was held, independently of whether a common-law offence
could exist, that the courts had no jurisdiction over the case in question. *' If that
were so, the common law certainly could not give them any. The cases were, therefore,
very correctly decided upon the principle assumed by the Court." (Kent, Comm. i. 338.)
But the case of United States v. Coolidge (1 Gallison, 488, 1 Wheat. 415) went further.
That was an indictment for an offence on the high seas, and was clearly a case of
admiralty jurisdiction, over which the courts of the United States have general and
exclusive jurisdiction. The Circuit Court judge held that there M-as jurisdiction. He
did not think it necessary to consider the broad question whether the United States had
entirely adopted the common law. He admitted that the courts of the United States
were courts of limited jurisdiction and could not exercise any authority not express!}'
confided to them. But he insisted that when an authority was once given, its extent
and the mode of its exercise must be regulated by the common law, and that if this
distinction were kept in sight it would dissipate the whole obscurity of the subject.
Under the Judiciary Act, the circuit courts had exclusive cognizance of •'crimes and
offences cognizable under the authority, of the United States."

§ 326 ]

THE JUDICATURE. 787

" This means all crimes and offences to which, bj* the Constitution of the United
States, the judicial power extends ; and the jurisdiction could not be given in more
broad and comprehensive terms. To ascertain what are crimes and ofifences against the
United States, recourse must be had to the principles of the common law, taken in
connection with the Constitution. Thus, Congress had provided for the punishment of
murder, manslaughter, and perjury, under certain circumstances, but had not defined
those crimes. The explanation of them must Ije sought in and exclusively governed by
the common law ; and uixin any other supposition, the judicial power of the United
States would be left in its exercise to arbitrary discretion ... It was accordinglj'
concluded that the circuit courts had cognizance of all offences against the United
States, and what those offences were depended upon the common law applied to the
powers confided to the United States, and that the circuit courts, having such cognizance,
might punish by fine and imprisonment, where no punishment was specially provided by
statute."' (Kent, Comm. i. 336-8.)

This case was brought up to the Supreme Court, but was not argued. There being
still a difference of opinion, the Court merely said that they did not choose to review
their decision in U. S. r. Hudson and Goodwin, or draw it into doubt. The decision
was for the defendant, and against the claim to any common law jurisdiction in criminal
cases. It seems to be now regarded as settled that in the criminal law there are no
common law offences against the United States. (United States v. Britton, 108 U.S.
199; United States v. Eaton, 144 U.S. 677. Kent Comm. i. 331, Notes.) "The
jurisdiction of the United States courts depends exclusivelj' on the Constitution and
laws of the United States, and they can, neither in criminal nor in civil cases, resort to
the common law as a source of jurisdiction." {He Barry, 136 U.S. at p. 607.)

Chancellor Kent does not regard the total denial of a common law jurisdiction in
criminal cases as based upon satisfactory principles ; and he cites with approval Du
Pouceau's opinion in favour of the distinction drawn by the Court below in United
States V. Coolidge {9tipra). Du Ponceau maintains "that we have not, under our
Federal Government, any common law considered as a source of jurisdiction ; while on
the other hand, the common law, considered mereU' as the meatis or inMrument of
exercising the jurisdiction, conferred by the Constitution and laws of the Union, does
exist, and forms a safe and beneficial system of national jurisprudence. The courts
cannot derive their right to act from the common law. They must look for that right to
the Constitution and law of the United States. But when the general jurisdiction and
authority is given, as in cases of admiralty and maritime jurisdiction, the rules of action
under that jurisdiction, if not prescribed by statute, may and must be taken from the
common law, when they are applicable, because they are necessary to give effect to the
jurisdiction."' (Kent, Comm. i. 339.)

Kent admits that it would be dangerous to leave it altogether to the courts to say
what is an offence against the law of the United States, when the law has not specifically
defined it ; but he suggests that the sound doctrine is that jurisdiction exists in criminal
cases, not only as to statute offences duly defined, but as to cases within the express
jurisdiction given bj- the Constitution. In other words, he contends that jurisdiction
extends to all cases within the judicial power of the United States.

" Though the judiciarj- power of the United States cannot take cognizance of
offences at common law, unless they have jurisdiction over the person or subject-matter
given them by the Constitution or laws made in pursuance of it ; yet, when the
jurisdiction is once granted, the common law, under the correction af the Constitution
and statute law of the United States, would seem to be a necessary and a safe guide, in
all cases, civil and criminal, arising under the exercise of that jurisdiction and not
specially provided for by statute. Without such a guide, the courts would be left to a
dangerous discretion, and to roam at large in the trackless field of their own imagina-
tions." (Kent, Comm. i. 341. See also Story, Comm. § 158, Note.)

It seems therefore that the doctrine that there are no common law offences against
the United States, but that every offence must be declared and made punishable by
statute, has been hesitatingly adopted bj- the Courts, and does not meet with universal
acceptance. The reasons for denying the existence of a federal common law do not satisfy
such writers as Chancellor Kent and Dr. Burgess ; and it is submitted to be the sounder

788 COMMENTARIES ON THE CONSTITUTION^. [Sec. 76.

doctrine that, within the scope of the judicial power, the common law may be resorted
to, to give effect to the jurisdiction conferred by the Constitution. And in this connection
it is to be noticed that the original jurisdiction of the High Court extends to "all matters
in which the Commonwealth or a person suing ... on behalf of the Commonwealth,
is a party." The corresponding provision in the United States Constitution is *' contro-
versies to which the United States shall be a party ; " and it is held (see Notes, § 320,
sunra) that "controversies" do not include criminal cases. " Matters," however, is
applicable to criminal as well as civil cases, and therefore it seems clear that the High
Court has jurisdiction over every offence against the Commonwealth which is prosecuted
by or on behalf of the Commonwealth. For examples of common law otteuces against
the Commonwealth see Note, § 341, infra. Acts prohibited by a statute, though not
expressly stated to be misdemeanours or punishable, are indictable. (See Notes,
§ 341, iajra.)

(3) Common Law Jurisdiction in Civil Cases. — In civil, as in criminal cases, the
common law cannot be relied on as the source of jurisdiction. {Be Barry, 136 U.S.
at p. 607.) But "though the common law cannot be the foundation of a jurisdiction
not given by the Constitution and laws, that jurisdiction, when given, attaches, and is to
be exercised according to the rules of the common law. Were it otherwise there
would be nothing to exempt us from an absolute despotism of opinion and practice."
(Kent, Comm. i. .343, Note ; and see Story, § 1645.)

' ' The Supreme Court of the United States, in Robinson v. Campbell (3 Wheaton
212, 10 Id. 159), went far towards the admission of the existence and application of the
common law to civil cases in the federal courts." (Kent, Comm. i. 341.) Under the
Judiciary Acts of 1789 and 1792, the remedies in the federal courts, at common law and
equity, were to be, not according to the practice of State courts, but " according to the
principles of common law and equity, as distinguished and defined in that countrj' from
which we derived our knowledge of those principles."

"In this view of the subject, the common law maybe cultivated as part of the
jurisprudence of the United States. In its improved condition in England, and especially
in its improved and varied condition in this country, under the benign influence of an
expanded commerce, of enlightened justice, of republican principles, and of sound
philosophy, the common law has become a code of matured ethics and enlarged civil
wisdom, admirably adapted to promote and secure the freedom and happiness of social
life. It has proved to be a system replete with vigorous and healthy- principles,
eminently conducive to the growth of civil liberty ; and it is in no instance disgraced by
such a slavish political maxim as that with which the Institutes of .Tustinian are
introduced. (Quod principr placuit legis hahet vigorem.) It is the common jurisprudence
of the United States, and was brought with them as colonists from England, and
established here, so far as it was adapted to our institutions and circumstances. It was
claimed by the Congress of the united Colonies, in 1774, as a branch of those 'indubitable
rights and liberties to which the respective colonies are entitled.' It fills up every
interstice, and occupies every wide space which the statute law cannot occupy. Its
principles may be compared to the influence of the liberal arts and sciences ; adversin
ptrfugium ac solatium proebent ; delectant dominon impediuiU foris ; pernoctant nobiscum.
peregrinantur, rusticantur." (Kent, Comm i. 342-3. )

" We live in the midst of the common law, we inhale it at every breath, imbibe it at
every pore ; we meet with it when we wake and when wo lay dowTi to sleep, when we
travel and when we stay at home : and it is interwoven with the very idiom that we
speak ; and we cannot learn another system of laws without learning, at the same time,
another language." (Du Ponceau on Jurisdiction, p. 91 ; cited Kent, Comm. i. 343.)

§327.] THE JUDICATURE. 789

Additional original jurisdiction.

76. The Parliament mav make laws conferrinor oricinal
jurisdiction'^" on the High Court in any matter^ —

(i.) Arising under this Constitution'^, or involving
its interpretation^ :

(ii.) Arising under any laws made by the Parlia-
ment^^ :

(iii.) Of Admiralty and maritime jurisdiction^^ :
(iv.) Relating to the same subject-matter claimed
under the laws of different States^.

UXTTKD States. — The judicial power shall extend to all cases in law and equity arising under
this Constitution, the laws of the United States, and treaties made, or which shall be
made, under their authority ; ... to all cases of admiralty or maritime jurisdiction ;
to controversies . . . between citizens of the same State claiming- lands under grants
of different States. (Const., Art. III., sec. ii., sub-sec. L) (The jurisdiction in the above
cases is appellate only ; see Notes to sec. 75.)

Historical Note. — The Bill of 1891 contained a similar provision, but in a different
form. Added to the " original jurisdiction " clause was a power to the Pariiament to
confer original jurisdiction in " such other of the cases enumerated in the last preceding
section as it thinks lit." The " preceding section " was that enumerating all the cases
in which jurisdiction could be given to the other federal courts, and including those in
wJiich the Supreme Court already had federal jurisdiction ; so that the ascertainment of
the cases to which the power applied involved a process of subtraction. The cases to
which the power applied were practically the same as in this section, except that they
also included cases arising " under any treaty made by the Commonwealth with
another country" — a class of cases, which, in a wider form, is now included in the
original jurisdiction of the High Court (sec. 75).

At the Adelaide session, 1897, a somewhat different form of expression was adopted.
This pro\ision, instead of referring expressl}' to a "preceding section," empoweretl
Parliament to confer original jurisdiction " in other matters within the judicial power ; "
and the section which had enumerated the cases in which jurisdiction might be given to
the federal courts other than the High Court was now transformed into a section which
purported to enumerate the cases to which "the judicial power shall extend." This
arrangement, however, was unsatisfactory, as it involved the use of the phrase "judicial
power" with exclusive reference to original jurisdiction, and therefore in a different
sense from that which it bears in section 71. It was taken from the United States
Constitution, in which the appellate and the original jurisdictions are lx)th limited to
certain classes of cases. (See Note,§ 339, infra.)

At the Melbourne session, on recommittal after the fourth Report, this proxision,
and the " judicial power '' section introduced in Adelaide, were recast to form sections
76 and 77 respectively.

§ 327. " Laws Conferring Original Jurisdiction."

In the absence of federal legislation, the original jurisdiction of the High Court will
be limited to the cases mentioned in the live sub-sections of sec. 75 ; but this section
empowers the Federal Parliament to extend that jurisdiction to anj' or all of the cases
mentioned in the four sub-sections. The Federal Parliament has no power to confer
original jurisdiction upon the High Court except what is given to it b}- this section ;
the affirmation of the power in particular cases excluding it in all others. (See Story,

790 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

Comm. § 1703 ; Kent, Comm. i. 316. The High Court is therefore prohibited by the
Constitution from taking original cognizance of any matter not within the scope of this
and the preceding section.

The cases mentioned in this section are cases in which the Convention did not think
it absolutely essential, at the outset, that tlie High Court should have original jurisdic-
tion ; but in which, on the other hand, such jurisdiction was appropriate and might
prove to be highly desirable. While confirming within narrow limits the original
jurisdiction actually given by the Constitution, they entrusted to the Parliament the
power of extending that jurisdiction to other cases of a specially Federal or inter-state
character.

§ 328. "In Any Matter."

These words mean, evidently, "in any class of matter." It is not intended tiiat
the Parliament should have power to legislate in respect of particular matters of
litigation, but that it should be able to extend the original jurisdiction of the High
Court to any class or classes of matters coming within the scope of this section. The
reason for using the singular " anj' matter " instead of the plural "all matters" is
apparently to avoid the possibility of construing the section to mean tliat the Parliament
must give the whole of this jurisdiction or none.

§ 329. "Arising under this Constitution."

The words " arising under this Constitution " are taken from the Constitution of
the United States ; the words ' ' or involving its interpretation ' are new, and seem to
liave been added, in the Adelaide draft of 1897, with the view of incorporating the
result of judicial decisions as to the meaning of the preceding words.

" Cases arising under the Constitution, as contradistinguished from those arising
under the laws of the United States, are such as arise from the powers conferred, or
privileges granted, or rights claimed, or protection secured, or prohibitions contained in
the Constitution itself, independent of any particular statute enactment Many ca.ses

of this sort may be easily enumerated. Thus if a State should coin

money, or make paper money a tender ; if a person tried for a crime against the United
States, should be denied a trial by jur}% or a trial in the State where the crime is

charged to be committed ; in these, and many other cases the question

to be judicially decided would be a question arising under the Constitution." (Story,
Comm. § 1647.)

Substituting "Commonwealth" for "United States," the above illustrations by
Story are applicable to this Constitution ; and many others niaj^ be given. Thus, if a
subject of the Queen, resident in one State, were subjected in another State to any
<lisability or discrimination in contravention of sec. 117 ; if a leligious test were required
as a qualification for any office or public trust under the Commonwealth ; if the
Commonwealth were to impose any tax on the property of a State, or vice versa ; or if a
question arose as to the rights of an officer of a transferred department under sec. 84 : all
these would he matters arising under the Constitution.

In Cohens v. Virginia, 6 Wheat. •26-1, it was contended that a case onl}' arose under
the Constitution where the plaintiff relied on some provision in the Constitution to
support his case ; but the Court refused to adopt this narrow construction. Marshall,
C.J., in delivering the judgment of the court, said (at p. .S79) : " If it [the intention] Ihj
to maintain that a case arising under the Constitution, or a law, must be one in which a
party comes into court to demand .something conferred on him by the Constitution or a
law, we think the construction too narrow. A case in law or equity consists of the right
of the one party, as well as of the other, and may truly be said to arise unrler the
Constitution or a law of the United States, whenever its correct decision depends on the
construction of either." It seems, therefore, that the words "or involving its
interpretation " add little or nothing to the meaning of the preceding words, as construed
by the courts of the United States.

-§ 330.]

THE JUDICATURE. 791

§ 330. "Its Interpretation."

IxTERPRETATios. — The interpretation of a written document is the process of
ascertaining the meaning and intention expressed in it. Sometimes " interpretation," as
contraste<l with "construction," is used in a narrower sense, to signif}- the process of
explaining particular provisions in which there is some ambiguity; whilst "construction"
is used to signify the process of comparing different parts of the document, and gathering
the intent from a survey of the whole. In other words, " interpretation" is thus used
in an anahtic, and " construction" in a synthetic sense. (See Story, Comm. § 397, et
seqq.) The word " interpretation " is clearh' used here in the most general sense, as
including both the analytic and the sjnthetic processes.

This sub-section empowers the Federal Parliament to give the High Court original
jurisdiction in any matter arising under tliis Constitution, or involving its interpretation.
But apart altogether from this sub-section, both State and Federal Courts have the duty
of interpreting the Constitution, which is the supreme law of the Commonwealth, in
every case in which they have jurisdiction and in which rights or obligations arising
under the Constitution are involved ; and the High Court, as the general appellate
tribunal, has the dutj' of re^'ie^ving the interpretations of State Courts. It is necessary
to discuss the questions (1) who are the interpreters of the Constitution? [2) what are
the leading principles on which its interpretation should be based ?

The Ln'tekpketers of the Constitution. — The Constitution, like everj- other
lasv, is dii-ectly binding on ever}' individual and every governmental agency vrithin the
Commonwealth. Every person, every officer, every political organ, has the dutj' of
comph'ing with its provisions, and must in the exercise of that duty interpret its
provisions, in the first instance, to the best of his ability and on his own responsibility.
Ever}- citizen is entitled to the protection of the Constitution and is bound not to
infringe it ; every officer and department of every Government— State or Federal — has
similar rights and obligations ; and the Federal Parliament and the State Parliaments
alike are bound not to exceed the authority conferred or reserved by the Constitution.
But the provisions of the Constitution may, wittingly or unwittingl}', be transgressed ;
rights arising under it may be denied ; obligations may be evaded. Ever}- person under
these circumstances has recourse to the appropriate courts to defend his own rights and
to enforce the obligations of others ; and thus, without any express provision, the courts
of the States, and the Federal Courts, whenever they have jurisdiction over a case, have
the duty of interpreting the Constitution so far as it affects the rights of the parties.
From the Supreme Courts of the States, as well as from inferior federal courts, an
appeal lies to the High Court, whose decisions are " final and conclusive," unless special
leave to appeal to the Privy Council is obtained either from the Privy Council or from
the High Court itself, as the case may be. It may therefore be said that every court of
competent jurisdiction is .an interpreter of the Constitution ; and that the High Court —
subject to exceptional review by the Privy Council — is the authoritative and final
interpreter of the Constitution.

In the exercise of the duty of interpretation and adjudication not only the High
Court, but every court of competent jurisdiction, has the right to declare that a law of
the Commonwealth or of a State is void by reason of transgressing the Constitution.
This is a duty cast upon the courts h\ the very nature of the judicial function. The
Federal Parliament and the State Parliaments are not sovereign bo<lies ; they are
legislatures with limited powers, and anj- law which the}' attempt to pass in excess of
those powers is no law at all it is simply a nullity, entitled to no obedience. The
question whether those powers have in any instance been exceeded is, when it arises in
a case between parties, a purely judicial question, on which the courts must pronounce
This doctrine was settled in the United States in 1803 by the great case of Marbury v.
Madison, 1 Cranch 137, where it was held that the authority given by the Judiciary
Act to the Supreme Court of the United States, to issue writs of mandamus to public
officers, was not warranted bv the Constitution.

792 COMMENTARIES ON THE CONSTITUTION. LSec. 76.

" The Supreme Court of the United States . . . has asserted the power of the
United States judiciary to stand between the constitution and the legislature, and to
pronounce an act of the legislature null and void whenever it comes into conflict with
such private rights or private property as, according to the interpretation placed upon
the constitution by the judiciary, are guaranteed in that instrument. The Court, on
the other hand, declines to claim any such transcendent power where the legislative act
does not come into conflict with private rights or private property. Of course, the
Court asserts the same power over against executive interference with private rights or
private property. A fortiori, it claims the same power over against the acts of the
States. The Court must itself determine when the case is one primarily affecting
private rights or private property, and when, on the contrary, it is primarily a political
question. The Court bases this position, in principle, upon the provision of the consti-
tution which vests in the judiciary jurisdiction over all cases arising under the
constitution." (Burgess, Political Sci. ii. 326-7. See Civil Rights Cases, 109 U.S. 3;
Luther v. Borden, 7 How. I.)

The effect of a judicial decision is primarily only to determine the rights of the
parties ; but inasmuch as such a decision, unless challenged, is a precedent for future
decisions, and a law which the courts refuse to enforce has no sanction and therefore is
without one of the fundamental attributes of a law, it follows that a rule established by
the highest Court of Appeal must be recognized as authoritative, and that the decisions
of that Court must be acquiesced in and conformed to by all persons as the final
interpretation of the law.

" The judicial interpretation of the constitution is therefore the ultimate interpre-
tation ; but it must be given through the form of a case, and can therefore be given
only upon such questions as form a proper subject for a case. Now, a case is a suit,
and a suit can be brought only when some private relation is directly involved. The
conclusion of political science from this view, held by the Court itself, "must be that tlie
decision of the Court reallj' affects only the particular case and that the executive power
may, without violating the Constitution, go on enforcing the nullified law in all
instances where it is not successfully resisted through the courts, 'i he general respect
for judicial decision in the United States has, however, given to any particular judgment
of the Supreme Court of the United States the force of a general rule, and has made it
a part of our constitutional custom that the executive shall cease to undertake tlie
further enforcement of a statute pronounced unconstitutional in any case." (Burgess,
Political Sci. ii. 327. See also Pomeroy, Const. Law, §§ 138-9.)

Principles of Interpretation^. —The rules of interpretation and construction of
documents in general are outside the scope of this work. But the character of this
Constitution involves certain special principles of construction which may be briefly
alluded to. It has to be interpreted (1) as an Act of the Imperial Parliament ; (2) as a
Constitution ; (3) as a Federal Constitution.

(1.) As an Imperial Act. — The Constitution of the Commonwealth is enacted as an
Act of the Imperial Parliament, and is to be construed in accordance with the rules
which regulate the construction of these Acts. (See Maxwell, Interpretation of Statutes ;
Hardcastle, Construction of Statutes.) In addition to the numerous rules which have
been laid down by judicial decision, the Imperial Parliament has itself, by enactments
which are now consolidated in the Interpretation Act, 1889 (52 and 53 Vic. c. 63), laid
down certain rules by which the provisions of every Act of Parliament are, "unless the
contrary intention appears," to be interpreted and construed. Only a few of the
provisions of that Act are applicable to the Constitution of the Commonwealth ; and before
enumerating them it may be well to observe that the history of the Constitution, and
current Australian usage with respect to any words or phrases found therein, may be
important elements in ascertaining whether such " contrary intention " appears. The
provisions of the Interpretation Act, 1889, which are likely to be of practical application
to this Constitution are as follows : —

1. (1) In . . . every Act passed . . . after the commencement of this
Act, unless the contrary intention appears-—

(o) words importing the masculine gender shall include females ;

and
(6) words in the singular shall include the plural, and words in the
plural shall include the singular.

§330.] THE JUDICATURE. 793

3. In every Act passed . . . after the commencement of this Act, the
following expressions shall, unless the contrary intention appears, have
the meanings hereby respectiveh" assigned to them, namely, —
The expression "month " shall mean calendar month.
8. Every section of an Act shall have effect as a substantive enactment without

introductory words.
12. In every Act passed . . . after the commencement of this Act, the
following expressions shall, unless the contrary intention appears, have
the meanings hereby respectively assigned to them, namely, —

(5) The expression "The Privy Council" shall . . . mean
the Lords and others for the time being of Her Majestj-'s
Most Honourable Privy Council.

18. In every Act . . . passed after the commencement of this Act. the

following expressions shall, unless the contrary intention appears, have
the meanings hereby respectively assigned to them, namely, —

(2) The expression "British possession" shall mean any part of

Her Majesty's dominions exclusive of the United Kingdom,
and where parts of such dominions are under both a central
and a local legislature, all parts under the central legislature
shall, for the purposes of this definition, be deemed to be one
British possession.

(3) The expression " colony " shall mean any part of Her Majesty's

dominions exclusive of the British Islands, and of British
India, and where parts of such dominions are under both a
central and a local legislature, all parts under the centi-al
legislature shall, for the purposes of this definition, be deemed
to be one colony.

19. In this Act and in every Act passed after the commencement of this Act,

the expression "person" shall, unless the contrary intention appears,
include an}' body of persons corporate or unincorporate.

32. (1) Where an Act passed after the commencement of this Act confers a
power or imposes a duty, then, imless the contrary- intention appears, the
power may be exercised and the duty shall be performed from time to
time as occasion requires.

34. In the measurement of any distance for the purposes of any Act pa.ssed
after the commencement of this Act, that distance shall, unless the
contrary intention appears, be measured in a straight line on a horizontal
plane.

(2.) As a Constitution. — Though an Act of Parliament, this Constitution is an Act of
a very special character. It is a constitutional charter for a great and practically self-
governing people ; framed by them, accepted by them, amendable by them, and
interpretable by them. As such a charter, it is of necessity expressed in broad and
general terms, it deals with abstract political conc-eptions, it affects the most important
individual and social relations ; and it is of the most ^ital importance that it should
receive, not a narrow and technical, but a broad and liberal construction.

" The Constitution unavoidably deals in general language. It did not suit the
purpose of the people, in framing this great charter of our liberties, to proWde for
minute specifications of its powers, or to declare the means Jjy which those powers should
be carried into execution. It was foreseen that this would be a perilous and difficult, if
not an impracticable, task. The instrument was not intended to provide merelj' for the
exigencies of a few 3'ears, but was to endure through a long lapse of ages, the events of
which were locked up in the inscrutable purposes of Providence. It could not be fore-
seen Mhat new changes and modifications of power might be indispensable to effectuate
the general objects of the charter ; and restrictions and specifications which at the
present might seem salutary, might, in the end, prove the overthrow of the sj-stem
itself. Hence its powers are expressed in general terms, leaving to the legislature, from
time to time, to adopt its own means to effectuate legitimate objects, and to mould and
model the exercise of its powers, as its own wisdom and the public interests should
require." (Per Story, J., Martin v. Hunter's Lessee, 1 Wheat, at p. .326.)

" A Constitution, to contain an accurate detail of all the .sub-divisions of which its
great powers will admit, and of all the means by which thej' may be carried into
execution, would partake of the prolixity of a legal code, and would scarcely be
embraced by the human mind. It would probably never be understood by the public.

794 COMMENTARIES ON THE CONSTITUTION. [Sec 76.

Its nature, therefore, requires that only its great outlines should be marked, its
important objects designated, and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves." (Per Marshall, C.J., McCulloch v.
Maryland, 4 Wheat at p. 407. )

" Nor can it be questioned that, when investigating the nature and extent of the
powers conferred l)y the Constitution upon Congress, it is indispensable to keep in view
the objects for which those powers were granted. This is a universal rule of construction
applied alike to statutes, wills, contracts, and constitutions. If the general purpose of
the instrument is ascertained, the language of its provisions must be construed with
reference to that purpose, and so as to subserve it. In no other way can the intent of
the framers of the instrument be discovered. And there are more urgent reasons for
looking to the ultimate purpose in examining the powers conferred by a constitution
than there are in construing a statute, a will, or a contract. We do not expect to find
in a Constitution minute details. It is necessarily brief and comprehensive. Jt prescribes
outlines, leaving the filling up to be deduced from the outlines. (Per Strong, J., Legal
Tender Cases, 12 Wall, at p. 531.)

" In the practical application of legal principles in the common affairs of life, the
written agreement, the deed, the testament, the statute, are construed by the aid of the
same rules, simply because they are written. The written Constitution, merely because
it is written, can form no exception. The most that can be said is, that, as greater
interests are involved Avhich affect the State rather than the individual, all narrow and
technical construction should, as far as possible, be avoided ; the nature of the writing
as an organic law should be allowed its full effect." (Pomeroy, Const. Law, § 18.)

(3.) As a Federal Constitution. — The Constitution of the Commonwealth is a Federal
Constitution ; it establishes a government of limited and enumerated powers. The
Federal Parliament is not, like the British Parliament, sovereign ; it is not even, like
the Parliament of the colonies before Federation, invested with powers which, within its
territorial jurisdiction, are practically sovereign ; its authority is limited to specified
subjects. The Constitution draws a line between the enumerated powers assigned to the
Federal (Tovernment and the residue of powers reserved to the State Governments. Both
sets of Governments are limited in their sphere of action ; but within their several
spheres they are supreme. (See Note, "Plenary Nature of Powers," § 160, supra.)
The canons of interpretation applicable to such a Constitution as this, in order to deter-
mine the existence and extent of a power, have been clearly and logically laid down by
Chief Justice Marshall and other American Judges. The guiding principle may be thus
stated : — The Federal Government can have no power which, on a reasonable construction
of the whole Constitution, has not been given expressly or by necessary implication.
But when once it has been determined that the Federal Government has power over the
subject matter, the scope of the power, and mode of giving effect to it, will receive
^ broad and liberal construction. The power of the Federal Parliament, though limited
to specified objects, is plenary as to those objects. (Per Marshall, C.J., Gibbons v.
Ogden, 9 Wheat. I.)

" The government, then, of the United States, can claim no powers which are not
granted to it by the constitution, and the powers actually granted must be such as are
expressly given, or given by necessary implication. On the other hand, this instrument,
like every other grant, is to have a reasonable construction, according to the import of its
terras ; and where a power is expressly given in general terms, it is not to be restraine<l
to particular cases, unless that construction grows out of the context expressl}', or by
necessary implication. The words are to be taken in their natural and obvious sense,
and not in a sense unreasonably restricted or enlarged." (Per Story, J., Martin i'.
Hunter's Lessee, 1 Wheat, at p. 326.)

" If any one proposition could command the universal assent of mankind, we might
expect that it would be this : that the government of the Union, though limited in its
powers, is supreme within its sphere of action. This would seem to result necessarily
from its nature. It is the government of all ; its powers are delegated by all ; it
represents all, and acts for all." (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat.
at p. 405. )

•' We admit, as we must all admit, that the powers of the government are limited,
and that its limits are not to be transcended. But we think the sound construction of
the constitution must allow to the national legislature that discretion, with respect to
the means by which the powers it confers are to be carried into execution, which will

^ 330.]

THE JUDICATURE. 795

enable that body to perform the high duties assigned to it, in the manner most beneficial
to the people. Let the end be legitimate, let it be within the scope of the constitution,
and all means which are appropriate, which are plainly adapted to that end,
which are not prohibited, but consist with the letter and spirit of the constitution,
are constitutional." (Per Marshall, C.J., ib. at p. 421.)

"This instrument contains an enumeration of powers expressly granted by the
people to their government. It has been said that these powers ought to be construed
strictly. But why ought they to be so construed ? is there one sentence in the
constitution which gives counteuance to this rule t In the last of the enumerated
powei-s, that which grants, expressly-, the means for carrying all others into execution,
congress is authorized ' to make all laws which shall be necessary and proper ' for the
purpose. But this limitation on the means which may be used, is not extended to the
powers which are conferred ; nor is there one sentence in the constitution, which has
been pointed out by the gentlemen of the bar, or which we have been able to discern,
that prescribes this rule. We do not, therefore, think ourselves justified in adopting it.
What do gentlemen mean by a strict construction ? If they contend only against that
enlarged constriiclion, which would extend words beyond their natural and obvious
import, we might question the application of the term, but should not controvert the
principle. If the}' contend for that narrow construction which, in support of some
theory not to be found in the constitution, would deny to the government those powers
which the words of the grant, as usually understoofi, import, and which are consistent
with the general views and objects of the instrument ; for that narrow construction,
which would cripple the government, and render it unequal to the objects for which it
is declared to be instituted, and to which the powers given, as fairly understoo<i, render
it competent ; then we cannot perceive the propriety of this strict construction, nor
adopt it as the rule by which the constitution is to be expounded. As men whose
intentions require no concealment, generally employ the words which most directly and
aptly express the ideas they intend to convey, the enlightened patriots who framed our
constitution, and the people who adopted it, must be understood to have employetl
words in their natural sense, and to have intended what they have said. If, from the
imperfection of hunian language, there should be serious doubts respecting the extent of
any given power, it is a well settled rule that the objects for which it was given,
especially when those objects are expressed in the instrument itself, should have great
influence in the construction. We know of no reason for excluding this rule from the
present case. The grant does not convey power which might be beneficial to the grantor,
if retained by himself, or which can enure solely to the benefit of the grantee ; but is an
investment of power for the general advantage, in the hands of agents selected for that
purpose; which power can never be exercised by the people themselves, but must be
placed in the hands of agents, or lie dormant. We know of no rule for construing the
extent of such powers, other than is given by the language of the instrument which
confers them, taken in connection with the purposes for which they were conferred."
(Per Marshall, C.J., Gibbons v. Ogden, 9 Wheat, at p. 187.)

" Now the doctrines laid down by Chief Justice Marshall, and on which the courts
have constantly' since proceeded, may be summed up in two propositions

" 1. Every power alleged to be vested in the National government, or any organ
thereof, must be affirmatively shown to have been granted. There is no presumption in
favour of the existence of a power ; on the contrary ; the burden of proof lies on those
who assert its existence, to point out something in the Constitution which, either expressly
or by necessary implication, confers it. Just as an agent, claiming to act on behalf of
his principal, must make out by positive evidence that his principal gave him the
authority he relies on ; so Congress, or those who relj- on one of its statutes, are bound
to show that the people iiave authorized the legislature to pass the statute. The search
for the power will be conducted in a spirit of strict exactitude, and if there be found in
the Constitution nothing which directly or impliedly conveys it, then whatever the
executive or legislature of the National government, or both of them together, may
have done in the persuasion of its existence, must be deemed null and void, like the act
of any other unauthorized agent.

" 2. When once the grant of a power by the people to the National government has
been established, that power will be construed broadly. The strictness applied in
determining its existence gives place to liberality in supporting its application. The
people— so Marshall and his successors have argued — when they confer a power, must
be deemed to confer a wide discretion as to the means whereby 'it is to be used in their
service. For their main object is that it should be used vigorously and wisely, which it
cannot be if the choice of methods is narrowly restricted ; and while the people may
well be chary in delegating powers to their agents, they must be presumed, when they
do grant these powers, to grant them with confidence in the agents' judgment, allowing
all that freedom in using one means or another to attain the desired end which is neede<l
to ensure success." (Brjce, Amer. Comm. I. 368-9.)

796 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

American Casks. — For the way in which these principles have been ajjplied to
incidental and implied powers, see Notes, § 226, supra. A few other principles of
construction laid down in leading American cases may be briefly noted.

Validity of Law. — " It is not on slight implication and vain conjecture that the
legislature is to be pronounced to have transcended its powers, and its acts to bo considered
void. The opposition between the Constitution and the law should be such that the
judge feels a clear and strong conviction of their incompatability with each other."
(Per Marshall, C. J., Fletcher v. Peck, 6 Cranch 87 ; and see Commonwealth v. Smith, 4
Binney [Penns.], 123.)

" It is incumbent, therefore, upon those who affirm the unconstitutionality of an
Act of Congress to show clearly that it is in violation of the provisions of the Constitution.
It is not sufficient for them that they succeed in raising a doubt." (Per Strong, J.,
Legal Tender Cases, 12 Wall, at p. 531. See also United States v. Harris, 106 U.S. 629.)

It is a settled rule that statutes which are unconstitutional in part only will be
upheld so far as they do not conflict with the Constitution, if the parts which are
unconstitutional are separable. (Austin v. Aldermen of Boston, 7 Wall. 694 ; State
Freight Tax Case, 15 Wall. 232; Packet Co. v. Keokuk, 95 U.S 80; Trade Mark
Cases, 100 U.S. 582; Railroad Companies v. Schutte, 103 U.S. 118 ; Unity v. Burrage,
103 U.S. 447; Penniman's Case, 103 U.S. 714; Supervisors v. Stanley, 105 U.S. 305;
Presser v. Illinois, 116 U.S. 252.) But this will not be done unless the valid and invalid
parts are capable of separation so that each can be read by itself. (United States v.
Reese, 92 U.S. 214; United States r. Harris, 106 U.S. 629 ; Virginia Coupon Cases,
114 U.S. 269; Baldwin v. Franks, 120 U.S. 678.) If the unconstitutional part cannot
be rejected without giving to the rest of the statute a meaning which was not contem-
plated, the whole statute is void. (Spraigue v. Thompson, 118 U.S. 90. Baker,
Annot. Const, p. 229.)

Restriction by Implication. — It is well established that when a power comes within
the reasonable intendment of one clause in the Constitution, an express gift of a portion
of the power, in another clause, will not be taken to cut the power down by implication.
Thus in the Legal Tender Cases, 12 Wall. 457, it was held that the clause giving Congress
express power " to coin money, regulate the value thereof, and of foreign coin," did not
contain an implication that Congress had no other powers over the currency.

" If by this is meant that because certain powers over the currency are expres.sly
given to Congress, all other powers relating to the same subject are impliedly forbidden,
we need only remark that such is not the manner in which the Constitution has always
been construed. On the contrary it has been ruled that power over a particular subject
may be exercised as auxiliary to an express power, though there is another express
power relating to the same subject, less comprehensive." (Per Strong, J., Legal Tender
Cases, 12 Wall, at p. 544. See also United States v. Marigold, 9 How. 560 ; Rhode
Island V. Massachusetts, 12 Pet. 657.)

Exception Marks Extent of Potver. — " It is a rule of construction acknowledged by
all, that the exceptions from a power mark its extent ; for it would be absurd, as well a.--
useless, to except from a granted power that which was not granted - that which the
words of a grant coidd not comprehend." (Per Marshall, C.J. , Gibbons v. Ogden, &
Wheat, at p. 191. See also Rhode Island v. Massachusetts, 12 Pet. 657.

Nature and Objects of the Power. — The Court should look to the nature and objects
of the power, in the light of contemporarj' history, and give to the words of the
Constitution such operation, consistent with their legitimate meaning, as to fairly attam
the ends proposed. (Prigg v. Pennsylvania, 16 Pet. 539 ; Gibbons v. Ogden. 9 Wheat. 1 )
Consequently, though it is a general rule in the construction of statutes that extrinsic
evidence, such as reference to the proceedings in Parliament, is not admissible to vary
or add to the terms of a statute (Reg. v. Hertford College, 3 Q.B.D. 693 ; Richards v.
M'Bride, 8 Q.B.D. 119), it would seem that the Debates of the Convention, or other
contemporary records, may be referred to as a guide to the construction of the Constitu-
tion.

§§ 331-332.]

THE JUDICATURE. 797

§ 331. '' Arising Under Any Laws made by the
Parliament."

In this sub-section the words of the United States Constitution have been accepted
without the addition (as in sub-s. i.) of the words " or involving their interpretation ; "
but the difference seems not to affect the scope of the provision.

" Cases arising under the laws of the United States are such as grow out of the
legislation of Congress, within the scope of their constitutional authority, whether they
constitute the right, or privilege, or claim, or protection, or defence of the party, in
whole or in part, by whom they are asserted." (Storj-, Comm. § 1647.) A case may
arise irnder the laws of the Commonwealth in a criminal as well as in a civil suit ; and a
case arises under a law when it arises under the implication of the law. (Tennessee v.
Davis, 100 U.S. 257.)

§ 332. " Of Admiralty and Maritime Jurisdiction."

Sees. 2 and 3 of the (Imperial) Colonial Courts of Admiralty Act, 1890 (53 and 54
Vic. c. 27) contain the following provisions : —

2. (1) Every court of law in a British possession which is for the time being
declared in pursuance of this Act to be a court of Admiralty, or which, if
no such declaration is in force in the possession, has therein original
unlimited civil jurisdiction, shall be a court of Admiralty, with the
jurisdiction in this Act mentioned, and may for the purpose of that
jurisdiction exercise all the powers which it possesses for the purpose of
its other ci\"il juristliction, and such court in reference to the jurisdiction
conferred by this Act is in this Act referred to as a Colonial Court of
Admiralty. . . .

(2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the pro-

visions of this Act, be over the like places, persons, matters and things,
as the Admiralty jurisdiction of the High Court in England, whether
existing by virtue of any statute or otherwise, and the Colonial Court of
Admiralty may exercise such jurisdiction in like manner and to as full an
extent as the High Court in England, and shall have the same regard as
that court to international law and the comity of nations.

(3) Subject to the provisions of this Act. any enactment referring to a Vice-

Admiralty Court, which is contained in an Act of the Imperial Parliament
or in a Colonial law, shall apply to a Colonial Court of Admiralty, and
be read as if the expression "Colonial Court of Admiralty" were therein
substituted for " Vice- Admiralty Court." or for other expressions
respectively referring to such Vice-Admiralty Courts or the judge
thereof, and the Colonial Court of Admiralty shall have jurisdiction
accordingly ; provided as follows : —

(a) Any enactment in an Act of the Imperial Parliament referring
to the Adniii-alty jurisdiction of the High Court in England,
when applied to a Colonial Court of Admiralty in a British
possession, shall be rea<l as if the name of that possession were
therein substituted for England and Wales ; and

(6) A Colonial Court of Admiralty shall have under the Naval Prize
Act, 1864, and under the Slave Trade Act, 1873, and any enact-
ment relating to prize or the slave trade, the jurisdiction thereby
conferred on a Vice- Admiralty Court, and not the jurisdiction
thereby conferred exclusively on the High Court of Admiralty'
or the High Court of Justice ; but, unless for the time being
duly authorizerl. shall not by virtue of this Act exercise any
jurisdiction under the Naval Prize Act, 1864, or otherwise in
relation to prize ; and

(c) A Colonial Court of Admiralty shall not have jurisdiction under
this Act to try or punish a person for an offence which,
according to the law of England, is punishable on indictment ;
and

798 COMMENTARIES ON THE CONSTITUTION. [Seo. 76.

(d) A Colonial Court of Admiralty shall not have anj' greater juris-
diction in relation to the laws and regulations relating to Her
Majesty's Navy at sea, or under any Act providing for the
discipline of Her Majesty's Navy, than may be from time to
time conferred on such court by Order-in-Council.
(4) Where a court in a British possession exercises in respect of matters
arising outside the body of a county or other like part of a British
possession any jurisdiction exercisable under this Act, that jurisdiction
shall be deemed to be exercised under this Act and not otherwise.
3. The legislature of a British possession maj' bj'^ any Colonial law

(a) declare any court of unlimited civil jurisdiction, whether original
or appellate, in that possession to be a Colonial Court of
Admiralty, and provide for the exercise by such court of its
jurisdiction under this Act, and limit territorial!}', or otherwise,
the extent of such jurisdiction ; and
{b) confer upon any inferior or subordinate court in that possession
such partial or limited Admiralty jurisdiction under such
regiilations and with such appeal (if any) as may seem tit.
I'rovided that any such Colonial law shall not confer any
jurisdiction which is not bj' this Act conferred upon a Colonial
Court of Admiralty.

By s. 15 the expression " unlimited civil jurisdiction " is defined as meaning " civil
jurisdiction unlimited as to the value of the subject matter at issue, or as to the amount
that may be claimed or recovered."

By s. 16 it was provided that the Act should not come into force in New South
Wales and Victoria until Her Majesty should so direct by Order-in-Council — which has
not been done with respect to either colony. With these exceptions (and others whicli
do not affect Australia) it was to come into force in "every British possession" on Ist
July, 1891.

Accordingly, in New South Wales and Victoria there is still a Vice-AdniiraltN
jurisdiction exercised by Imperial Courts under the Vice-Admiraltj' Courts Act, 186S
(26 and 27 Vic. c. 24), and the Vice-Admiralty Courts Act Amendment Act, 1867 (2i>
and 31 Vic. c. 45). For the history and extent of this jurisdiction see Webb, Imperial
Law in Vic, p. 68. In every other Australian colonj' the Colonial Courts of Admiralty
Act, 1890, has superseded and repealed the Vice- Admiralty Acts, and the Supreme Court
of the colony is a Colonial Court of Admiralty accordingly. It remains to discuss the
combined effect of this Constitution and of the Colonial Courts of Admiralty Act, 1890 -
both being Imperial statutes -on the jurisdiction of the States and of the Commonwealth
in Admiraltj' matters.

Jurisdiction or Courts in States. — Until the Federal Parliament legislates under
this section, the sole original jurisdiction in admiralty matters will rest with the Court*
of Admiralty or Vice- Admiralty, as the case may be, in the several States. It seems
clear that the constitution of those courts is not in any way affected by the estabUsh-
ment of the Commonwealth. Tlie Constitution of each State, and the laws in force in
each State, continue, subject to this Constitution (sees. 106, 108) ; and the identity of
each State as a " British possession" remains unchanged notwithstanding the establish-
ment of the Commonwealth.

" The object of the (British North America) Act was neither to weld the Provinces
into one, nor to subordinate provincial governments to a central authority, but to create
a federal government in which they should all be represented, entrusted with thtf
exclusive administration of affairs in which they had a common interest, each Province
retaining its independence and autonomy." (Per Lord Watson, delivering judgment of
the Privy Council, Liquidators of Maritime Bank of Canada v. Receiver-General of New
Brunswick (1892), App. Ca. at p. 441.) It seems clear that the above-mentione<l
Imperial Acts relating to Vice-Admiralty and Admiralty Courts continue to apply to the
States individuall}', and that the existing Admiralty and Vice Admiralty Courts may
exercise the same jurisdiction as before. But the provisions of those Acts, so far a*

^ 332.] THE JUDICATURE. 799

they apply to colonies which become States of the Commonwealth, are in some
respects overridden by the words of the Constitution,

In those States where, under the Colonial Courts of Admiralty Act, 1S90, the
Supreme Courts have an Admiralty- jurisdiction, that jiurisdietion is clearly subject to the
provisions as to appeal contained in this Constitution, and the provisions as to appeal
c-ontaiued in the Colonial Courts of Admiralty Act are superseded and impliedly repealed
with respect to such States. Moreover, the Admiralty juris^liction of the Supreme
Courts of the States is subject to sec. 77 of the Constitution ; so that the Federal
Parliament may, after investing the federal courts with such jurisdiction, make that
jurisdiction to any extent exclusive, and thereby to a corresponding extent deprive the
State courts of jurisdiction.

With respect to the Vice- Admiralty Courts at present established in Xew South
Wales and Victoria, the application of sections 73 and 77 is more difficult Does an
appeal lie from these Vice- Admiralty Courts to the High Courts, and can the Federal
Parliament, under sec. 77, deprive these Courts of any part of their jurisdiction ? The
answer to these questions depends on the question whether these coiu-ts are included in
the expressions "any other court of any State" in sec. 73, and "the courts of the
States " in sec. 77. Now it does not seem that either of these Vice- Admiralty Courts
can, without an undue stretching of the words, be called a Court "of a State." "The
Vice- Admiralty Court is an Imperial Court, established by Commission of the Admiralty.
The jurisdiction exercisable by it is an Imperial one, and is altogether independent of
that of the Supreme Court and of a different nature — and it is not competent for the
local legislature to deal either with the extent thereof or the practice and procedure
observed therein.'' (Webb, Imperial Law in Vic, p. 68 ; Vice- Admiralty Courts Amend-
ment Act, 1867 [Imp.], s. 16.) In short it would seem that the Vice-Admiralty Court is
an Imperial Court " in " a State, and not, in any strict sense of the word, a court " of"
a State ; and therefore that there is nothing in sec. 73 to give the High Court an
appellate jurisdiction. The same reasoning would apply to exclude the Vice-Admii-alty
Courts from liability to have their jurisdiction cut down under sec. 77. This construction
is strengthened by the general presumption against ousting existing jurisdiction, or
creating new jurisdictions. (See Maxwell, Interpr. of Statutes, Chap. V.) The
difficulty, of course, may be removed at anj' time by the issue of Orders in Council,
under the Imperial Act of 1890, directing the Act to be in force in Xew South Wales
and Victoria, and thus superseding the Vice-Admiralty Courts altogether. On this
question the case of Attorney-General of Canada r. Flint, 3 S.C. (Xova Scotia) 453 ;
16 S.C.R. (Can.) 707, and cited in Wheeler, Confed. Law of Canada, pp. 68-9, is instruc-
tive. A Dominion law, conferring jurisdiction on the Vice- Admiralty Court of Xova
Scotia in prosecutions for certain penalties incurred under the Inland Revenue Act,
was held to be constitutional. Henry, J., said (16 S.C.R. [Can.] p. 713) : —

" Although the Vice- Admiralty Court is established by the authority of England,
still I see nothing to prevent the Parliament of Canada, inasmuch as that Court sits
within the jurisdiction of that Parliament, to give it power and authority to try Inland
Revenue cases or cases connected with the customs. I would say, however, I do not
think that Court could be obliged to perform such duty, and that it is a Court that
could very well w rap itself up in its authority amd say, ' Our other duties prevent us
from assuming the functions assigned to us by the Parliament of Canada ;' but it is
read}- to adopt the duty, and I see no reason whj' the Parliament of Canada should not
have the power to impose it."

Okigixal JcRiSDiCTiox OF HiGH CorRT. — The question next arises whether, in
conferring original jurisdiction on the High Court, the Parliament is limited by the
provisions of the Colonial Courts of Admiralty Act, 1890. Sec. 3 of that Act (cited
above) empowers the Legislature of a British possession to " declare any court of
unlimited civil jurisdiction, whether original or appellate, in that possession to be a
Colonial Court of Admiralty." Under this provision, the Dominion Parliament in
Canada has passed an Act (54 and 55 Vic. c. 29) declaring the Exchequer Court of
Canada to be a " Colonial Court of Admiralty."

800 COMMENTARIES ON THE CONSTITUTION. [Sec. 76.

Under this Constitution, however, the Parliament has power, independently of the
Colonial Courts of Admiralty Act, to confer Admiralty and maritime jurisdiction on the
High Court ; and it seems clear that the limitations imposed by that Act on the juris-
diction of " Colonial Courts of Admiralty " within the meaning of that Act, and upon
colonial Parliaments legislating under the powers conferred by that Act, cannot be read
into the plenary powers conferred by this section. Nevertheless, whatever may be the
legal powers of the Commonwealth, it would probably be inexpedient, in conferring
Admiralty jurisdiction on the High Court or other courts of federal jurisdiction, to go
outside the limits defined by that Act, which may be taken as a guide to the reasonable
limits of the jurisdiction.

Extent of Jurisdiction. — For the extent of the Admiralty jurisdiction in England,
see Story, Comm. §§ 1663-73 ; Kent, Comm. i. 304, 354-80.

" The jurisdiction claimed by the Courts of Admiraltj', as properly belonging to
them, extends to all acts and torts done upon the high seas, and within the ebb and flow
of the sea, and to all maritime contracts, that is, to all contracts touching trade,
navigation, or business upon the sea, or the waters of the sea, within the ebb and flow
of the tide. Some part of this jurisdiction has been matter of heated controversy between
the courts of common law and the High Court of Admiralty in England, with alternate
success and defeat, liut much of it has been gradually yielded to the latter, in considera-
tion of its public convenience, if not its paramount necessity. . . . The Admiralty
and maritime jurisdiction (and the word ' maritime ' Avas, doubtless, added to guard
against the narrow interpretation of the preceding word ' Admiralty') conferred by the
Constitution, embraces two great classes of cases — one dependent upon locality, and the
other upon the nature of the contract. The first respects acts or injuries done upon the
high sea, where all nations claim a common right and common jurisdiction ; or acts and
injuries done upon the coast of the sea ; or, at furthest, acts and injuries done within
the ebb and flow of the tide. The second respects contracts, claims, and services purely
maritime, and touching rights and duties appertaining to commerce and navigation.
The former is again divisible into two great branches — one embracing captures, and
questions of prize arising _7?<re belli ; the other embracing acts, torts, and injuries strictly
of civil cognizance, independent of belligerent operations." (Story, Comm. §§ 1665-6.)

In the United States, it has been held that the grant in the Constitution is neither
to be limited to or interpreted by what were cases of Admiralty jurisdiction in England
when the Constitution was adopted, but extends the power so as to cover every expansioa
of such jurisdiction. (Waring v. Clarke, 5 How. 441.)

All the navigable waters of the Atlantic coast which empty into the sea, or into
bays and gulfs that form a part of the sea, are as much within the admiralty and maritime
jurisdiction of the United States as is the sea itself. (Transportation Co. v. Fitzhugh,
1 Black, 574. ) The jurisdiction is not confined to tide waters, but extends to all lakes
and rivers where commerce is carried on between States or with foreign nations. (The
Geneasee Chief v. Fitzhugh, 12 How. 443.) All previous decisions limiting the Admiralty
jurisdiction to tide waters are overruled, and the broad doctrine is announced that
jurisdiction as conferred by the Constitution exists wherever ships float and navigation
successfully aids commerce, whether internal or external. (The Hine v. Trevor,
4 Wall. 555.)

For other American cases on the Admiralty and maritime jurisdiction, see Baker,
Annot. Const, pp. 124-6 ; also Commentaries of Story and Kent, passages cited above.

§ 333. " Relating to the same Subject-matter claimed
under the Laws of Different States."

The corresponding words in the Constitution of the United States are:— "Con-
troversies between citizens of the same State, claiming lands under grants of diflPerent
States." The provision in this Constitution is considerably wider. It refers not to land
alone, but to anything which may be the subject-matter of a suit ; and the claim need
not be made under grants of different States, but under " the laws of diff'erent States
generally. The absence of such words as " between citizens (or residents) of tlie same

5 3:«.] THE JUDICAXrRE. 801

State " not only simplifies the procedure, by requiring no allegation or proof of citizenship
or residence, but extends the jurisdiction to cases where either party is not a citizen or
resident of any State.

" The Federalist has remarked that the reasonableness of the agency of the national
courts in cases in which the national tribunals cannot be supposed to be impartial speaks
for itself. No man ought certainly to be a judge in his own cause, or in an\- cause in
respect to which he has the least interest or bias This principle has no inconsiderable
weight in designating the federal courts as the proper tribunals for the determination of
controversies between different States and their citizens. And it ought to have the
same operation in regard to some cases between citizens of the same State. Claims to
land under grants of different States, founded upon adverse pretensions of boundary,
are of this description. The courts of neither of the granting States could be expected
to be unbiased. The laws may have even prejudged the question, and tied the courts
dowTi to decisions in favour of the grants of the State to which they belonged. And
where this has not been done, it would be natural that the judges, as men, should feel a
strong predilection for the claims of their own Government. And, at all events, the
providing of a tribunal having no possible interest on the one side more than the other,
would have a most salutary tendency in quieting the jealousies and disarming the
resentments of the State whose grant should be held invalid." (Story, Comm. § 1696.)

It has been held in the United States that " this jurisdiction attaches not only to
grants made by different States which were never united, but also to grants made by
different States which were originally united under one jurisdiction, if made since the
separation, although the origin of the title may be traced back to an antecedent period."
(Story, Comm. § 1696; Town of Pawlet v. Clark, 9 Cranch 292; Colson v. Lewis,
2 Wheat. 377.) Under the wider terms of this sub-section, the jurisdiction would seem
to attach, in such a case, even though the grant had been made before the separation, if
the claim at the time of action depended on the laws of different States.

Power to define jurisdiction.

77. With respect to any of the matters mentioned in the
last two sections^ the Parhament may make laws —

(i.) Defining the jurisdiction of any federal court

other than the High Court^ :
(ii.) Defining the extent to which the jurisdiction of
any federal court shall be exclusive^ of that
which belonofs to or is invested in the courts
of the States :
(iii ) Investing any court ot a State with federal
jurisdiction^.

Historical Note. — In a somewhat different form, the whole of this section (except
sub-s. iii.) was substantially contained in the Bill of 1891 (Ch. III. sec. 7), which
enumerated the cases in which jurisdiction might be given.

At the Adelaide session, 1897, the clause was cast practically into its present form,
except that the introductory limitation was worded ">vithin the limits of the judicial
power" — the " judicial power "' referred to being defined in a previous clause. (Conv.
Deb. , Adel. , p. 1203. See Historical Note, sec. 76. )

At the Melbourne session, on recommittal after the fourth Report, the section was
altered by the Drafting Committee to accord with the two preceding sections. (Conv.
Deb., Melb., pp. 348-9.)

The word " invested," in sub-s. ii., seems to have been substituted per incuriam in
the Imperial Parliament, for " vested," which was the word in the Draft Bill.

802 COMMENTARIES ON THE CONSTITUTION. [Sec. 77.

^ 334. "With Respect to any of the Matters Mentioned
in the Last Two Sections."

This section supplements the legislative powers given to the Parliament bj- the
last section with respect to conferring jurisdiction on federal and State courts and
limiting the concurrent jurisdiction of the State Courts. By these preliminary words
the whole operation of the section is limited to the nine classes of matters enumerated in
sees. 75 and 76. The cases in which jurisdiction may be given to the inferior federal
courts and to the courts of the States are precisely the same as the cases in which
original jurisdiction has been given, or may be given, to the High Court. It is to be
observed, however, that the jurisdiction which may be given under this section is not
restricted to "original jurisdiction." The matters in which jurisdiction may be given
are those enumerated in the " original jurisdiction" clauses ; but the jurisdiction which
may be given in these matters, under this section, is apparently either original or
appellate. (See Martin v. Hunter's Lessee, 1 Wheat. 304 ; Kent, Comm. i. .319 ; Story,
Comm. § 1732.) It is thus possible that the inferior courts created by the Parliament
may come to play a very important part in the federal judiciary. There may be
established, not only courts of original jurisdiction corresponding to the District Courts
of the United States, but also courts of appellate as well as original jurisdiction, corres-
ponding to the Circuit Courts of the United States.

§ 335. "Defining the Jurisdiction of any Federal Court
other than the High Court."

This sub-section deals with the jurisdiction of " such other federal courts as the
Parliament creates" (s. 71). The High Court is created, and a great part of its juris-
diction is conferred, by the Constitution itself ; but the inferior courts will depend
AviioUy, for their existence and for their jurisdiction, on federal legislation. And of
course the jurisdiction so given must be within the limits allowed by the Constitution.
The following quotation from the opinion of the Supreme Court of the United States in
Mayor v. Cooper, 6 Wall, at p. 252, is completely applicable : — " As regards all courts
of the United States inferior to this tribunal, two things are necessary to create federal
jurisdiction, whether original or appellate. The Constitution must have given the court
the capacity to take it, and an act of Congress must have supplied it."

§ 336. "Defining the Extent to which the Jurisdiction of
any Federal Court shall be Exclusive."

The Constitution, whilst it confers jurisdiction, or enables jurisdiction to be
conferred, on the federal courts in certain cases, does not take away the pre-existing
jurisdiction of the State courts in any of those cases. The consequence is that there
remains a concurrent jurisdiction in the courts of the States in all those cases of federal
jurisdiction which would have been within the competence of the courts of the Stat«s if
no federal courts had existed. (See Note, § 326, sitpra.) It is obvious that some federal
control over this concurrent jurisdiction is necessary ; and in the United States it has
been definitely settled that wherever the judicial power of the United States is not in
its nature exclusive of State authority, it may at the election of Congress be made so.
(See Kent, Comm. i. 397 ; Cooley, Const. Lim. 18.) This provision is, therefore, merely
an explicit enactment of what in the Constitution of the United States is held to be
implied.

The power to make the federal jurisdiction exclusive means the power to take juris-
diction away from the courts of the States, in all cases in which jurisdiction is given to
the courts of the Commonwealth. But this power of taking away jurisdiction is
confined, not onl}' within the limits of " the matters mentioned in the last two sections,"

§§ 336-337.] THE JUDICATURE. 803

but within the narrower limits of the jurisdiction actually conferred on Federal Courts
under those sections. 'Phat is to say, the Parliament can at ouce take awaj* the
jurisdiction of the State courts in matters enumerated in sec. 75 ; but it cannot take
away the jurisdiction of the State courts in any matter enumerated in sec. 76 until it
has 6rst conferred that jurisdiction upon a federal court. The exclusion of the State
jurisdiction must be founded on the establishment of the federal jurisdiction.

CoNciRRENT JcRiSDiCTiox. — If a case be within the ordinary jurisdiction of a
State Court, the Court may take cognizance of it notwithstanding that it arises under
rights acquired by the Constitution or a law of the Commonwealth, pro\ided of course
that the jurisdiction of the State Court has not been excluded under this section.
"State Courts may, in the exercise of their ordinary, original, and rightful jurisdiction,
incidentally take cognizance of cases arising under the Constitution, the laws and
treaties of the United States. " (Kent, Comm. i. 397.) In Claflin r. Houseman, (93 U.S.
130) it was held that an assignee in bankruptcy, under the federal bankrupt law, might
sue in a State Court. It was laid doMm that the laws of the United States are, within
the limits of a State, as much the law of the land as are the laws of the State itself ;
and that therefore the Courts of the State are competent to adjudge rights under them
if the matter is othervtnse within their jurisdiction and if Congress has not excluded
that jurisdiction. The jurisdiction of the State Court in such cases was held not to be
a new jurisdiction conferred by Congress, but a jurisdiction derived from the Constitu-
tion and laws of the State. (See Calhoun v. Lanaux, 127 U.S. 634.)

This doctrine applies to criminal as well as civil matters. In the case of offences
against the laws of the Commonwealth, it appears that the Courts of a State may
exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by
the exclusive jurisdiction of the Federal Courts. (Kent, Comm. i. 399.)

Where a Federal and a State Court have concurrent jurisdiction of a criminal
matter, it has been held in the United States that a sentence either of acquittal or
conviction by either court may be pleaded in bar of a prosecution before the other ; and
the same principle applies in ci^^l cases. (Houston r. Moore, 5 Wheat. 1 ; Kent, Comm.
i. 399). A doubt arose in the same case whether, in ca.se of a con\iction by a State
Court for a crime against the United States, the Governor of the State would have
power to pardon, and so conti-ol the law and policy of the United States. It is
submitted that in Australia such right would be undoubted. The prerogative of mercy
rests with the Queen's Representative in the States as well as with her Representative
in the Commonwealth ; and in the case of a sentence of a State Court must belong to
the Governor of the State. (See sec. 70.)

§ 337. " Investing any Court of a State with Federal

Jurisdiction."

Under the Constitution of the United States, the Congress cannot vest federal
jurisdiction in any courts except those of its own creation— or at least, it cannot compel
those courts to entertain such jurisdiction ; and acts of Congress purporting to vest
such jurisdiction have been held unconstitutional. (See Kent, Comm. i. 400-4O4 ; and
compare Attorney-General of Canada r. Flint 3 S.C. [Nova Scot.] 453 ; 16 S.C.R.
[Can.] 707 ; cited Wheeler, Conf. Law of Canada, pp. 68-9.) This Constitution
supplies tlie omission by giving the Federal Parliament a verj' full and complete
power to invest the State Courts with jurisdiction in any or all of the matters
enumerated in sees. 75 and 76.

It will be practicable under this section, should the Parliament so desire, to dispense
altogether, at the outset, with the creation of any federal courts other than the High
Court, and to assign to the courts of the States such federal jurisdiction as may be
necessary in order to secure the proper administration of the judicial business of the
Commonwealth. In this waj' it Avill be possible to dispense with unduly cumbersome

304 COMMENTARIES ON THE CONSTITUTION. [Sec. 78.

judicial machinery in the early years of the Commonwealth, and only develop and extend
the national judicial system to meet the gradually increasing requirements of the people.
But whilst federal functions may thus be exercised under federal authority, by State
tribunals, the Federal Parliament can at any time revoke the authority, and transfer the
whole of this subsidiary jurisdiction to courts of its own creation.

It is noteworthy that in this section, as elsewhere in the Constitution, the judicial
department of the Commonwealth is more national, and less distinctively federal, in
character, than either the legislative or the executive departments. The High Court, as
has already been pointed out (§§ 288, 299, mpi-a), is not only a federal, but a national
court of appeal ; it has appellate jurisdiction in matters of the most purely provincial
character as well as in matters of federal concern. Confidence in the integrity and
impartiality of the Bench prevents any jealousy or distrust of this wide federal
jurisdiction ; and the same confidence makes it possible to contemplate without misgiving
the exercise of federal jurisdiction by State courts— subject, of course, to the controlling
power of the Federal Parliament.

Proceedings against Commonwealth or State.

78. The Parliament may make laws conferring rights to
proceed against the Commonwealth or a State^^ in respect of
matters within the limits of the judicial power^^^.

Umtkd States. — The judicial power of the United States shall not be construed to extend to
any suit in law or equity commenced or prosecuted against one of the United States by
citizens of another State, or by citizens or subjects of any foreign State. (Amendment xi.)

Historical Note. — The Commonwealth Bill of 1891 contained the following clause
(Ch. iii. sec. 7) : —

"Nothing in this Constitution shall be construed to authorize any suit in law or
equity against the Commonwealth, or any person sued on behalf of the Commonwealth,
or against a State, or any person sued on behalf of a State, except by the consent of the
Commonwealth, or of the State, as the case may be."

At the Adelaide session, 1897, at the instance of the Judiciary Committee, the clause
of the 1891 Bill was adopted verbatim ; but in committee, Mr. Barton proposed its
omission. Mr. Glynn, who had prepared an amendment to allow Parliament to deal
with the matter, fell in with this suggestion. No one defended the clause, and it was
struck out. (Conv. Deb , Adel., pp. 989-90.)

At the Melbourne session, Mr. Glynn moved the insertion of a new clause as
follows : —

•* Proceedings may be taken against the Commonwealth or a State in all cases,
within the limits of the judicial power, in which a claim against a subject might be
maintained."

Mr, Symon thought the clause dangerously wide, and that the proper course was to
give Parliament power to legislate with regard to proceedings against the Crown. He
argued, however (dissenting from Mr. Glynn and Mr. Barton) that the Parliament would
have this power even in the absence of express provision, as it was a mere matter of
procedure. Sir John Downer supported the clause, as very properly abolisliing the
maxim " the Queen can do no wrong"— just as had been done in New South Wales by
the Claims against Government Act, 1876. Mr. Dobson preferred the clause as it stoo«I
to Mr. Symon's suggestion. Mr. O'Connor thought it a matter not of procedure merely,
Vmt of prerogative right, which could not be taken away witiiout express words ; and ho
proposed, as an amendment to Mr. Glynn's proposition, the clause which now stands in
the Constitution. After further debate, Mr. O'Connor's amendment was carried.
(Conv. Deb., Melb., pp. 1653-79.)

§338.]

THE JUDICATURE. 805

^ 338. " Rights to Proceed against the Commonwealth

or a State/'

Remedies against the Crowx. — " It is an ancient and fandamental principle of
the English Constitution, that the king can do no wrong."' (Broom's Maxims, p. 53.)
One consequence of this principle is that no soit or action, even in respect of civil
matters, can— apart from statute — be brought against the sovereign. " Indeed, his
immunitj, both from civil suit and from penal proceeding, rests on another subordinate
reason also, viz., that no court can have jurisdiction over him. For all jurisdiction
implies superiority of power, and proceeds from the Crown itself. But who, says Finch,
shall command the king?" (Steph. Comm. ii. 48*).) In England there are ancient
remedies by petition of right and by intnutraia de droit, by which a subject who has a
claim against the Crown, in respect of prtqierty or arising^ out of contract, may obtain
redress as a matter of royal grace. In 1860. by the (Imperial) Act 23 and 24 Vic c 34,
the remedy by petition of right was practically assimilated to the ordinary procedure by
action at law or suit in equity, and was made triable in any Superior Court of appropriate
jurisdiction ; so that in cases where a petition of right Ues, there is substantially a right
of suit against the Crown, in the guise of a petition.

In some of the Australasian colonies more extended rights of proceeding against the
Crown have been conferred. Thus in New South Wales, under the Claims Against the
Colonial Oktvemment Act, 1876, any person making a claim against the Government may
petition the Governor to appoint a nominal defendant, and in default of such appoint-
ment the Colonial Treasurer shall be the nominal defendant. The claimant may sue the
nfNminal defendant at law or equity in any competent court, may obtain judgment or
costs as in an ordinary case between subject and subject, and in default of payment may
levy execution upon the property of the Ciovemment. In Queensland, the Claims
Against Oiovemment Act, 1866, is to the same effect. For the history of these Acts,
see Sydney MomtHg Herald, 10 August, 1867, 17 April, 1S75. It has been held by the
Privy Council that under the New South Wales Act an action will lie for torts committed
bj the servants of the Crown. (Bowman r. Famell, 7 X.S.W. L.R. 1 ; Avb nosinie
Famell r. Bowman, 12 App. Ca. 643.) Sir Barnes Peacock, delivering the judgment of
the Judicial Committee, made the following pertinent remarks on the policy of allowing
suits against the Crown in the colonies : —

" It must be borne in mind that the local Governments in the colonies, as pioneers of
improvements, are frequently obliged to embark in undertakings which in other ooontries
are left to private enterprise, such, for instance, as the construction of railways, canals,
and other works for the construction of which it is necessary to employ many inferior
officers and workmen. If, therefore, the maxim that * the king can do no wrong ' were
applied to colonial governments in the way now contended for by the appellants, it
would work much greater hardship than it does in England.'' (12 App. Ca. at p. (>49.)

In New Zealand, under the Crown Suits Act, 1881, actions may be maintained
against the Crown for breach of any contract entered into by the (iovemmeut, and also
for torts committed under the authority of the Government in connection with any
public work. (See Reg. r. Williams, 9 App. Oa. at p. 432.) In Western Australia, the
Crown Suits Act, 1896, is to a similar effect.

In Tasmania, under the Crown Redress .-\.ct. 1891, any one ha\~ing a daim against
the Queen in respect of any contract entered into by the Government of Tasmania, or in
respect of any act or omission of any officer, agent, or servant of the Government,
which would between subject and subject be the ground of an action at law or a suit in
equity, may file in any court of competent jurisdiction a supplication in the form of a
declaration at law or bill in equity, which is to be pleaded to by the Attomey-lieneral,
and tried like an action or suit between subjects. If judgment is against the Crown, no
execution is to issue, but the suppliant is entitled to a certificate of judgment, which
authorizes payment of damages and costs out of the Consolidated Revenue Fund.

806 COMMENTARIES ON THE CONSTITUTION. |Sec. 78.

In Victoria and South Australia there is no remedy against the Crown for torts, and
the remedy in contract is by petition. (See Crown Remedies and Liability Act, 1890
Victoria], and Claims Against Government Act, 1853 [South Australia].)

The Governments both of the Commonwealth and the States represent the authority
of the sovereign in the Commonwealth and in the States respectively ; and a suit against
the Commonwealth or a State is therefore a suit against the Crown. Without the
consent of the Crown, given in the proper way, no such suit would lie.

Suits against the Commonwhalth. — That the Federal Parliament should have the
power to make laws conferring rights to proceed against the Commonwealth is a
proposition which will hardly be disputed. ProbabW it would have had such power,
even without express words ; inasmuch as the prerogative right of the Crown in the
Commonwealth exempting it from suit is a right which can be waived by the consent of
the Crown, and legislation by the Federal Parliament, of which the Crown is a part,
would be an appropriate mode of giving such consent. Thus in the United States it has
never been disputed that Congress has power to consent by law to the federal govern-
ment being sued. (Per Marshall, C.J., Cohens v. Virginia, 6 Wheat. 412; Kendall v.
United States, 12 Pet. 524 ; Hill v. United States, 9 How. 386 ; Kent, Comm. i. 297.)
But it is unnecessary to consider whether this would have been among the implied
legislative powers of the Parliament ; because this section gives the power in express
terms.

Suits against a State.— It is clear that each State retains the power which it has
always possessed to make laws conferring rights of procedure against itself. That, how-
ever, is not sufficient. Under the Constitution, there are duties cast upon the States
which the federal judiciary ought to have power to enforce at the suit of any person
injured ; such for instance as the duty of not subjecting the residents of other States to
disabilities or discriminations (sec. 117), and the duty of giving full faith and credit to
the laws, &c., of every State (sec. 118). If each State were free to allow or not to allow
itself to be sued in matters of federal jurisdiction, the federal courts might find them-
selves powerless in such matters ; and therefore the Federal Parliament has been
empowered to confer rights of proceeding against a State in respect of matters " within
the limits of the judicial power."

The Constitution of the United States was formerly silent on this point, and in the
famous case of Chisholm v. Georgia, 2 Dall. 419, the question arose whether the Consti-
tution conferred the right to sue a State. It was decided that it did ; but the decision
aroused such a storm of indignation in Georgia and in the other States that the eleventh
amendment was passed, declaring that the judicial power should not be construed to
extend to suits against a State by citizens of another State, or b3' citizens or subjects of
a foreign State. (See § 324, supra ; Kent, Comm. i. 297 ; Story, Comm. § 1683.)

§ 339. " Within the Limits of the Judicial Power."

"The judicial power" here has a narrower meaning than in sec. 71, where it
includes the whole appellate power of the High Court — a power not limited in respect of
"matters." It must in fact be taken as equivalent to the expression in sec. 77, "in
respect of matters mentioned in the last two sections " — in other words, as referring to
matters in which original jurisdiction may be given to the federal courts. As a matter
of fact, in the Adelaide draft the words " within the limits of the judicial power " were
used in both this and the preceding section, and the words "judicial power " were used
in the original jurisdiction clauses. It was recognized, however, that tlie expression—
though apt enougli in the Constitution of the United States, where the scope of the
whole judicial power, appellate as well as original, is strictly' limited — was inapt in this
Constitution, where the appellate power is general ; and therefore in sees. 75-77 the
Drafting Committee substituted words which made it clear that original jurisdiction
only was referred to. In this section, however, the piirase was left, apparently by an

4 339.] THE JUDICATURE. 807

oversight. In sec. 71 the phrase "judicial power " is correctly applied as meaning the
whole of the power vested in the federal judiciary (see § 286, supra) ; here it is used
somewhat loosely. There can be no doubt, however, as to the meaning of the section-
The power of the Federal Parliament to confer rights of proceeding against a State is
strictly limited to those cases of specially federal cognizance enumerated in sees. 75 and 76.

Number of judges.

79. The federal jurisdiction of any court may be exercised
by such number of judges as the Parliament prescribes.

Historical Note. —The clause was originally framed by the 1891 Convention, and
has only been verbally amended since then. (Con v. Deb., Adel., p. 787 ; Melb., pp.
.349-50.)

Trial by jury.

80. The trial on indictment^^ of any offence against any
law of the Commonwealth^*^ shall be by jury^', and every
such trial shall be held in the State where the off'ence was
committed, and if the offence was not committed within any
State the trial shall be held at such place or places as the
Parliament prescribes.

United Statbs. — The trial of all crimes, except in cases of Impeachment, shall be by jury ; and
such trial shall be held in the State wnere the said crimes shall have baen committed ;
but when not committed within any State, the trial shall be at such place or places as the
Congress may by law have directed— Const., Art III., sec. 2, sub-s. 3.

No person shall be held to answer for a capital or otherwise infamous crime unless on a
presentment or indictment of a p-and jury, except in cases arising in the land or naval
forces, or in the militia, when in actual service in time of war or public danger ; nor shall
an^-person be subject, for the same offence, to be twice put in jeopardy of life or limb ; nor
shall be compelled, in any criminal case, to be a witness against himself ; nor be deprived
of life, liberty, or property, without due process of law. (Amendment V.)

Historical Note. — The first part of the clause, as framed and passed in 1891, ran
" The trial of all indictable ofifences cognizable by any Court established under the
authority of this Act shall be by jury."

At the Adelaide session, 1897, the clause was introduced almost verbatim as in 1891.
Mr. Higgins opposed the clause, on the ground that the question of trial by jui-y might
safely be left to the Federal Parliament ; but it was agreed to. (Con v. Deb., Adel., pp.
990-1.)

At the Melbourne session an amendment suggested by the Legislative Assembly of
South Australia, to omit the requirement that trial should be by jury, was supported
by Mr. Glynn and Mr. Higgins. Mr. Wise supported the clause, as a necessary
safeguard of individual liberty. Mr. Isaacs thought the clause afforded little guarantee,
as it might be evaded by a technicality. After further debate, the amendment was
negatived on division by 17 votes to 8. An amendment by Mr. Higgins, to insert
" unless Parliament otherwise provides " before the words " be held in the State where,"
was negatived. Before the first report, the clause was verbally amended by the Drafting
Committee. (Conv. Deb., Melb.. pp. .350-4.) On recommittal after the first report, the
words "trial of all indictable offences" were, on Mr. Barton's motion, altered to " trial
on indictment of any offence." The object was to allow summary punishment of minor
offences and contempts, even though they might be indictable. Mr. Isaacs thought that
the clause, in either form, would have little real effect. (Conv. Deb., Melb., pp. 1894-5.)

808 COMMENTARIES ON THE CONSTITUTION. [Soc. 79.

§ 340. " The Trial on Indictment. "

The Trial. — It has been held in the United States that the word " trial" means
the trying of the cause by the jury, and not the arraignment and pleading preparatory
to such trial. (United States v. Curtis, 4 Mason 232.),

It would seem that this provision is only intended to apply to trials in federal
courts, and courts exercising federal jurisdiction ; and not to extend to the courts of the
States in those cases in which they may have a concurrent jurisdiction to try ofi'ences
against the laws of the Commonwealth. With regard to the corresponding provision of
the Constitution of the United States (set out above), Miller, J., in Eilenbecker v.
District Court, 134 U.S. at p. 35, said : —

" This article is intended to define the judicial power of the United States, and it is
in regard to that power that the declaration is made that all crimes . . . shall be by
jurj^ It is impossible to examine the accompanying provisions of the Constitution
without seeing very clearly that this provision was not intended to be applied to trials
in the State Courts."

"As the Constitution of the United States was ordained and established by the
people of the United States, for their own government as a nation, and not for the
government of the individual States, the powers conferred, and the limitations on
power contained in that instrument, are applicable to the (iovernment of the United
States, and the limitations do not apply to the State Governments unless expressed in
terms." (Kent Comm. i. 407 ; Barron v. Baltimore, 7 Peters, 243.)

On Indictment.— The constitutional requirement of trial b}' jury only applies when
the trial is " on indictment;" and there is no provision, corresponding to the Fifth
Amendment of the United States Constitution, that all capital or infamous crimes must
be tried on indictment. As was pointed out by Mr. Isaacs (Conv. Deb., Melb., p. 1894),
"it is within the powers of the Parliament to say what shall be an indictable offence
and what shall not. The Parliament could, if it chose, say that mui'der was not an
indictable offence, and therefore the right to try a person accused of murder would not
necessarily be by jury."

It is submitted that, according to general usage in Australia, "indictment"
includes an information filed by the Attorney-General or other proper officer for the
prosecution of an indictable offence. In England, an indictment in the strict sense is
" a written accusation of one or more persons of a crime presented upon oath by a jury
of twelve or more men, termed a grand jury." (Chitty, Crim, Law, i. 167.) An
indictment by a grand jury is in England ' ' the most usual and constitutional course for
bringing offenders to justice on criminal charges " (Broom, Com. Law, p. 1047) ; whilst
an ex officio information by the Attorney-General is only employed in the case of offences
of peculiar public danger. Accordingly it has been held that the word " indictment "
occurring in a particular statute did not include an ex officio in.formation. (Reg. v Slator,
8 Q.B.D. 267.) In some Acts, however, for instance, 14 and 1.5 Vic. c. 100, s. 30,
'* indictment" is defined as including information. And " indictment " includes inquisi-
tion. (2 Hale, loo ; Withipole's Case, Cro. Car, 134 ; Maxwell, Interpr. of Stat. p. 4.")6.)

In New South Wales and Van Diemen's Land, by the Constitution Act of 1828
(9 Geo. IV. c. 83, s. 5) it was provided that " until further provision be made as
hereinafter directed for proceeding by juries," all offences cognizable in the Supreme
Courts of those colonies should be "prosecuted by information in the name of His
Majestj^'s Attorney-General, or other officer duly appointed for such purpose by the
Governor of New South Wales and Van Diemen's Land respectively," and that such
information should be tried before a Judge and seven naval or military officers. By
sec. 10 the Legislatures of the two colonies respectively were authorized to " extend
and apply the form and manner of proceeding by grand and petit juries." It was
doubtless contemplated that when the colonies became ripe for the jury system, the
procedure by information would be superseded by indictment before a grand jury ; but
in both colonies an information in the name of the Attorney-General continues to be
the usual mode of prosecuting indictable offences, and the information is called, in the

§§ 340-341.] THE JUDICATURE. 80^

Statute book and in common parlance, an "indictment." The same is the case in
Queensland. (See Crim. Law Amendment Act of 1883 [N.S.W.], s. 3 ; Crim. Practice
Act, 1865 [Queensland], s, 76.) In South Australia and Western Australia grand
juries were instituted for a time, but were abolished in 186.5 and 1883 in those colonies
respectivel}', an information by the Attorney-General, in lieu of a grand jury, being
substituted. In Victoria there is provision made for indictment by grand juries ; but
the most usual form of prosecuting indictable offences is b\- "presentment"' by the
Attorney-General. (See Crimes Act 1890 [Vic], ss. 387-9.)

In all the Australian colonies, therefore, indictable offences are prosecuted in the
name of the Attorney -General by a procedure variously known as information,
presentment, or indictment, and chiefl3' differing from an indictment in being found
b}' a law officer instead of by a grand jury. It seems clear that the words "on
indictment " would extend to any such form of prosecution as this. The distinction
intended by the section is betM'een indictable offences and offences punishable in a
summary way ; and its operation ought, therefore, to extend to all prosecutions which
are substantially in the nature of an indictment.

§ 341. "Any Offence Against any Law of the
Commonwealth."

Offexce. — The word "offence "'has no special technical meaning in law. It is a
general word signifying a public wrong, and includes all crimes and misdemeanours,
whether indictable or punishable by summary conviction.

Any Law of the Commoxwealth. — The phrase "any law of the Commonwealth'"
includes, in the first place, the Constitution itself ; which is not only a law of the
Commonwealth, but in a sense, and with the reservation of the supremacy of the British
Parliament, may be called the supreme law of the Commonwealth. It includes, in the
next place, the laws of the Federal Parliament ; which, together with the Constitution,
are " binding on the courts, judges, and people of every State, and of every part of the
Commonwealth." (Constitution Act, clause v.)

Common Law Offences. — It is submitted that the words "offence against any law of
the Commonwealth " would cover also any common law offence against the Common-
wealth which the Federal Courts may have jurisdiction to try. (See sec. 326, supra.)
So far as the common law can be relied upon by the Commonwealth and in relation to the
affairs of the Commonwealth, it would seem to be, equally with federal statutes, the law
of the Commonwealth. As examples of common law offences against the Commonwealth
which might be indictable, even in the absence of federal legislation, the following are
suggested :— Bribery of a public officer is a common law offence, and indictable as a
misdemeanour. (Reg. v. Lancaster, 16 Cox, 737.) Anj' act of fraud upon a public officer,
with intent to deceive, whereby a matter required b}' law for the accomplishment of an
act of a public nature is illegally obtained, is an indictable misdemeanour. (Reg. v.
Chapman, 2 Car. and K. 846 ; 1 Den. 432 ; 18 L.J. M.C. 152.) Being in possession of
•coining tools, with intent to use them, is a common law misdemeanour. (Rex v. Sutton,
1 East P.C. 172.) So is procuring base coin, with intent to utter it. (Rex v. Fuller,
R. and R. 308.;

Acta Prohibited. — The Constitution is an Imperial Statute, and both it and the laws
of the Parliament made under it are the law of the land. Accordingly the wilful doing
of any act expressly prohibited by the Constitution or laws, even though not declared
punishable, is a misdemeanour.

"Where an offence is not so at common law, but made an offence by Act of
Parliament, -an indictment will lie where there is a substantive prohibitory clause in
such statute, though there be afterwards a particular provision and a particular remedy
given. Thus, an unqualified person may be indicted for acting as an attorney contrary
to the 6 and 7 Vic. c. 73, sec. 2, although sec. 35 and sec. 36 enact that in case any
person shall so act he shall be incapable of recovering his fees, and such offence shall be

810 OOMMEf^TARIES ON THE CONSTITUTION. [Sec. 80.

<ieemed a contempt of court, and punishable accordingly." (Russell on Crimes, 5th ed.
i. 192.)

" Wherever a statute forbids the doing of a thing, the doing of it wilfully, although
without any corrupt motive, is indictable." {Id; Rex. v. Sainsbury, 4 T. R. 457. )
Accordingly the provision that ' ' each elector shall vote only once " (sees. 8, 30) is an
■express provision against plural voting, and any elector voting more than once at a
federal election will be guilty of a misdemeanour. (Conv. Deb., Adel. , p. 1183.)

§ 342. " By Jury."

This provision guarantees not merely the form of trial by jury, but all the
substantial elements of trial by jury, as they exist at common law. (Walker v. New
Mexico and S. P. Railroad, 165 U.S. 593.) "Unanimity was one of the peculiar and
essential conditions of trial by jury at the common law. No authorities are needed to
sustain this proposition. Whatever may be true as to legislation which changes any
mere details of a jury trial, it is clear that a statute which destroys this substantial and
•essential feature thereof is one abridging the right." (American Publishing Co. v.
Pisher, 166 U.S. at p. 467 ; Springville v. Thomas, 166 U.S. 707.) " Trial by jury, in
the primary and usual sense of the term at common law and the American Constitution,
is a trial by a jury of 12 men, in the presence and under the superintendence of a judge
empowered to instruct them upon the law and to advise them upon the facts, and
(except upon acquittal of a criminal charge) to set aside their verdict if in his opinion it
is against the evidence." (Capital Traction Co. v. Hof, 174 U.S. 1.) In the last-
mentioned case it was also decided that the provisions of the Constitution as to trial by
jury extend to the federal district of Columbia.

A jury means a jury composed, as at common law, of twelve men. (Thompson v.
Utah, 170 U.S. 343 ; Maxwell v. Dow, 176 U.S. at p. 586.)

" The very idea of a jury is a body of men composed of the peers or equals of the
person whose rights it is selected or summoned to determine ; that is, of his neighbours,
fellows, associates, persons having the same legal status in society, as that which
he holds. Blackstone, in his Commentaries, says : — ' The right of trial by the jury, or
the country, is a trial by the peers of every Englishmen, and is the grand bulwark of his
liberties, and is secured to him by the Great Charter.' " (Strauder v. W^est Virginia, 100
U.S. 303.)

4 343.] FENANCE AND TRADE. 811

CHAPTER IV.— FINANCE AND TRADE.

Consolidated Revenue Fund.

81. All revenues or moneys^^ raised or received by the
Executive Government of the Commonwealth shall form one
Consolidated Revenue Fund**^ to be appropriated for the
purposes of the Commonwealth^^ in the manner and subjest to
the charges and liabilities imposed by this Constitution^^

Caxada. — All duties and revenues over which the respective Legislatures of Canada, Xova
Scotia, and New Brunswick before and at the Union had and have the power of Appro-
priation, except such portions thereof as are by this Act reserved to the respective Le^s-
latures of the Provinces, or are raised by them in accordance with the special powers
conferred on them by this Act, shall form one Consolidated Revenue Fund, to be
appropriated for the public service of Canada in the manner and subject to the charges in
this Act provided. — B.N. A. Act, sec. 102. And see Constitutions of Aust. Colonies.

HiSTOEiCAii Note. —As originally drafted and passed in 1891, the clause read : —

*' All duties, revenues, and moneys ... to be appropriated for the public service
of the Commonwealth . . . subject to the charges provided by this Constitution."

At the Adelaide session, 1 897, the clause was introduced in the same form. On Sir
John Downer's motion, the words " duties " auid " monejs " were omitted, to make it
clear that loan moneys do not go to the Consolidated Revenue Fund. (Conv. Deb.,
Adel. , pp. 83-1-5.) At the Melbourne session there was a general debate on the report of
the Finance Committee (p. 197, stipra). A suggestion of the Legislative Council of
Tasmania, to restore "and moneys," was negatived. (Conv. Deb., Melb., pp. 774-900.)
Drafting amendments were made before the first Report : The words " or moneys " were
inserted, the word "purposes" was substituted for "public service," and the words
" and liabilities " were inserted, to make it clear that the payments to the States, under
sees. 89 and 93, were included.

§ 343. "All Revenues or Moneys."

In the corresponding clauses of the Constitutions of the Australian colonies — and,
it is believed, of all British colonies — the word " moneys" is not used : the usual words
associated with " revenues " being "duties," "taxes," &c. In this Constitution the
word " moneys" was struck out in Adelaide, to make it clear that loan moneys were
not included, and a suggestion to restore it was negatived at Melbourne for the same
reason (see Hist. Note, supra) ; but at a subsequent drafting stage it was reinserted
for some reason that is not apparent. It cannot, however, be supposed that the Con-
vention meant that loan moneys should be paid into the Consolidated Revenue Fund.
(See Conv. Deb., Melb., p. 1114 ) The generic word "moneys" must be controlled by
the preceding specific word " revenues," and limited to moneys in the nature of revenue.
This is a well-known and sound principle of construction. (See Maxwell, Interpr of
Statutes, chap. XI., sec. v.)

The imiversal constitutional practice, not only of Great Britain, but of all the
British colonies, to keep loan funds distinct from revenue funds, is the strongest possible
corroboration of the evidence afforded by the debates, that there was no intention
whatever of departing from established usage in this re.spect.

812 COMMENTARIES ON THE CONSTITUTION. [Sec. 82.

" Revenue is the annual yield of taxes, excise, customs duties, rents, &c., which a
nation, state, or municipality collects and receives into the treasury for public use."
(Webster, Internat. Diet. ) It includes not only revenue from taxation, but all revenue
received by the Government as paj^ment for services rendered — such as the revenue of
the post and telegraph department. It also includes all payments in the nature of
penalties, or fees for licenses, &c., and in fact every kind of public income.

§ 344. '' Consolidated Revenue Fund."

In 1787, by the Imperial Act 27 Geo. III. c. 13, the numerous revenues of the
Crown in the United Kangdom were brought together into a "Consolidated Fund,"
into which flows every stream of the public revenue, and whence issues the supply for
every public service. (See May, Pari. Practice, p. 558.) In the Australian colonies the
land revenues were for many years kept distinct from the general revenues ; but on the
grant of responsible government a Consolidated Revenue Fund was created in each
colony. This feature of financial administration, universal in all the self-governing
parts of the Empire, is reproduced in this Constitution.

§ 345. " To be Appropriated for the Purposes of the
CommoniArealth."

For notes on appropriation, see § 350, infra. "The purposes of the Common-
wealth " include the payments to the States made by virtue of the Constitution. The
States being "parts of tlie Commonwealth," expenditure by the federal government in
pursuance of its constitutional liability to the States is as much a " purpose of. the
Commonwealth " as its expenditure upon the services of the federal government.

§ 346. " Subject to the Charges and liiabilities Imposed
by this Constitution."

This is a stock provision, to be found in all the colonial Constitutions ; except that
the word "liabilities" is new, and is intended to meet the peculiar conditions of
Commonwealth finance. The Consolidated Revenue Fund is, for purposes of collection
and receipt, as much a single fund as the Consolidated Fund of the United Kingdom, or
of any of the British colonies. But for purposes of appropriation, it is subject, under
the distribution clauses of the Constitution, to somewhat rigid financial provisions,
which constitute " liabilities" imposed upon the residue of the fund, after the charges
upon it for federal expenditure have been satisfied.

The charges and liabilities imposed by the Constitution are: — (I) The costs,
charges, and expenses incident to collection, management, and receipt (sec. 82) ; (2) the
other expenditure of the Commonwealth (sec. 82) ; (3) any financial assistance which,
during the currency of sec. 96, the Parliament may think fit to provide out of revenue ;
(4) the payments of surplus revenue to the States, on the basis prescribed for the time
being (sees. 89, 93, 94).

Expenditure Charged Thereon.

82. The costs, charges, and expenses incident to the
collection, management, and receipt of the Consolidated
Revenue Fund shall form the first charge thereon^*^ ; and the
revenue of the Commonwealth'^^** shall in the first instance be
applied to the payment of the expenditure of the Common-
wealth^*^

Canada.— The Consolidated Revenue Fund of Canada shall be permanently charged with the
costs, charges, and expenses incident to the collection, management, and receipt thereof,
and the same shall form the first chari?e thereon.— B N. A. Act, sec. 103; and see Con-
stitutions of the Australian Colonies.

^§347-349.] FINANCE AND TRADE. 813

Historical Xote. — The clause as originally adopted in the Commonwealth Bill,
1S91, followed the wording of the Canadian clause ; and the words " The revenue of the
Commonwealth shall be applied in the first instance in the payment of the expenditure
of the Commonwealth " were prefixed to clause 9 (apportionment of surplus revenue).

At the Adelaide Session, 1897, the clause was introduced and passed as in 1891, but
with the words " and the revenue Commonwealth" transferred from clause 9.

At the Melbourne Session, a suggestion of the Legislative Assembly of New South
Wales, to omit the concluding words, was considered. Dr Quick pointed out that the
■clause might be regarded as a permanent special appropriation, dispensing with the
need of A-ppropriation Acts — an argument which had been raised on sec. 45 of the
Victorian Constitution Act. Mr. Barton promised consideration by the Drafting
Committee. (Con v. Deb., Melb., p. 901 ; and see pp. 907-8.)

Drafting amendments : — Before the 1st Report, the word "permanently" was
omitted to meet the objection. After the 4th Report, the clause was recast.

§ 347. " Shall Form the First Charge Thereon."

These words are not intended to create, and, it seems, do not create, a special
appropriation of the expenses of collection, which must therefore be authorized by
Appropriation Act like any other expenditure of the Commonwealth. (See Conv. Deb.,
Melb., pp. 900-1, 907-8 ; and Historical Note, suprxi.)

§ 348. '* The Revenue of the Commonwealth."

" The revenue of the Commonwealth " is apparently synonymous with the expres-
sion in sec. 81, " all revenues or moneys raised or received by the Executive Government
of the Commonwealth." (See Notes, § 343, supra.)

§ 349. "The Expenditure of the Commonwealth."

The phrase "expenditure of the Commonwealth" (which occurs again in sec. 89;
and see sees. 87, 93) means all moneys expended for the public service of the Common-
wealth. It includes the expenses of collection ; so that the provision that " the
revenue of the Commonwealth shall in the first instance be applied to the payment of
the expenditure of the Commonwealth " is not inconsistent with the provision that the
expenses of collection shall be a first charge on the Consolidated Revenue Fund.

Money to be Appropriated by Law.

83. No money shall be drawn from the Treasury of the
Commonwealth except under appropriation made by law^

But until the expiration of one month after the first
meetint^ of the Parliament the Governor-General in Council
may draw from the Treasury and expend such moneys as
may be necessary for the maintenance of any department
transferred to the Commonwealth and for the holdinof of the
first elections for the Parliament.

UsiTED States.— No monej- shall be drawn from the Treasury, but in consequence of appro-
priations made by law. — Art. I., sec. 9, subs. 6.

Canada. — Subject to the several pa>-raents by this Act charged on the Consolidated Revenue
Fund of Canada, the same shall be appropriated by the Parliament of Canada for the
public service. — B.X.A. Act, sec. 106; and see Colonial Constitutions: e.g.. Const, of
X.S.W., sec. 53.

Historical Note. — The clause as passed in 1891 consisted of the first paragraph

only. Mr. ThjTine proposed to add "and for purposes authorized bj- this Constitution"

in order to limit expenditure to those purposes. The amendment was negatived, as

being unnecessary. (Conv. Deb., Syd. [1891], pp. 788-9.)

814 COMMENTARIES ON THE CONSTITUTION. [See. 83.

At the Adelaide Session, 1897, the draft of 1891 was followed, with the addition of
the words " and by warrant countersigned by the Chief Officer of Audit of the Common-
wealth." (Conv. Deb., Adel., p. 835.)

At the Melbourne Session, the Finance Committee recommended the omission of
the provision for warrant, on the ground that there would be no Officer of Audit at first,
and that it was a matter for legislation. On Sir Geo. Turner's motion the omission was
agreed to. Dr. Quick proposed to add "but section 82 [Consol. Rev. Fund] shall not
be deemed to constitute such an appropriation." The amendment was withdrawn for
consideration by the Drafting Committee. (See Historical Note to sec. 81.) Mr.
Glynn suggested that there should be provision for audit ; which Mr. Barton promised
to consider. (See sec. 97, Conv. Deb., Melb., pp. 774, 901-9.)

§ 350. " Appropriation Made by Law.'*

With the temporary exception prescribed in the second paragraph of the section,,
the provision that no money shall be drawn from the Treasury " except under appro-
priation made by law " is absolute and general. Where no appropriation is effected by
the Constitution itself, every appropriation — whether for expenditure for federal
services, or for payments to the States — must be made by a law of the Federal
Parliament.

Appropriations are of two kinds — special (or permanent) and annual. Those
payments which it is not desirable to make subject to the annual vote of Parliament
are specially appropriated, once for all, by a permanent Act. Such payments, for
instance, are the salaries and pensions of Judges, the interest on the public debt, and
certain endowments. Such, too, are the paj^ments provided for in the " civil lists " set
out in the Schedules to the Constitutions of tlie several colonies. But by far the
greater bulk of the public expenditure is usually appropriated by annual votes com-
prised in the Appropriation Bill.

Special Appropriations. — There are several sections of the Constitution which
clearly constitute special appropriations. Among these are sec. .3, which declares that
there shall be payable to the Queen out of the Consolidated Revenue Fund, for the
salary of the Governor-General, an annual sum which, until the Parliament otherwise
provides, shall be £10,000 ; sec. 48, which declares that, until the Parliament otherwise
provides, every member of either House shall receive an allowance of £400 a year ; and
sec. 66, which declares that there shall be payable to the Queen, out of the Consolidated
Revenue Fund, for the salaries of Ministers of State, an annual sum which, until the
Parliament otherwise provides, shall not exceed £12,000 a year. The opinion has
already been expressed (eee Notes, § 347, supra) that sec. 82 does not constitute a
special appropriation of the costs of collecting the federal revenue, or the general
expenditure of the Commonwealth.

The view also appears to be justified, both as a matter of construction and by
considerations of expediency, that the provisions of sees. 89 and 93, requiring the
Commonwealth, after crediting revenue and debiting expenditure to the several States,
to pay the balances monthly to the several States, amount to a special appropriation.
It may mdeed be argued that tliis is merely a direction to the Federal Parliament to
appropriate the balances to the several States, and is not in itself an appropriation.
This view, however, seems hardly satisfactory. The period of these payments is
determined, and the amount is made ascertainable, by the Constitution itself. An
appropriation by the Federal Parliament could do no more than confirm the provisions
of the Constitution, and such confirmation seems quite unnecessary. Moreover, the
payments are to be made monthly from the establishment of the Commonwealth ; and
the first payments will be due before the Federal Parliament can possibly meet. Sec. 83
makes provision for the payments necessary for maintaining the federal dcpartmentij
during that interval, and for holding the first federal elections, without any Parlia-

§350.] FINANCE AND TRADE. 815

mentary appropriation ; but no such provision is made with regard to payments to the
States; and it seems that the necessity for Parliamentary appropriation of these
pajTnents was not contemplated,

PROCEnuKE. — The procedure in connection with the granting of supply is largely
dependent on Standing Orders. The details of procedure differ in many respects in the
different Legislatures within the Empire ; but the general features are much the same,
and it may be assumed that they will be followed in the Parliament of the Common-
wealth. The Treasurer will first bring down into the House of Representatives the
estimates of expenditure, with a message from the Governor-General (see sec. 56). In
Committee of t^upply, each vote or resolution in the Estimates, and each item therein,
may be discussed, and may be reduced or omitted ; but the Committee of Supply cannot
increase any grant which has been recommended b}' the Governor-General. When the
grants have been voted by the Committee of Supply, resolutions will be moved in
Committee of Ways and Means, to the effect that, towards making good the supply
granted, a certain sum be granted out of the Consolidated Revenue Fund. These
resolutions having been reported and agreed to by the House, the Appropriation Bill
will be introduced and passed, and forwarded to the Senate. (For the Senate's powers
in regard to it, see see. 5.3.) The Appropriation Act, when duly assented to, will give
legal effect to the resolutions of the Committees. Upon a proper warrant from the
Governor-General, which will give final validity to a grant of supply, the Treasurer will
make the issues to meet those grants out of the Consolidated Revenue Fund. (See May,
Pari. Practice, Ch. XXII. ; Bourinot, Pari. Procedure, Ch. XVII. )

It is sometimes impracticable, owing to the conditions of Parliamentary business,
to deal with the estimates before the financial year begins ; and in order to meet the
immediate demands of the Public Service, "votes on account" are authorized bj'
Temporary Supply Bills as occasion may require. In the British Parliament, votes on
account for the first months of the financial year are now the invariable practice ; and
they have also been frequently employed in the different Australian Parliaments. In
Canada, on the other hand — where the Dominion Parliament meets in January, and the
financial year ends on 30th June — they are rarely resorted to. (Bourinot, Pari.
Procedure, p. 576.)

Peelimisaby Expenses. — From the day of the establishment of the Common-
wealth, revenue will be collected by the Federal Government, and expenditure will be
ncurred ; but no statutory appropriation can be made until the Federal Parliament has
met. During this interval, and for a month after the meeting of Parliament, the
necessity for such appropriation is suspended to the extent of any payments necessary
for the maintenance of the transferred departments and for the conduct of the federal
elections. As to the question whether the expenses of elections for the Senate are to be
borne by the Commonwealth, see note, § 74, supra.

Transfer of Ofiicers^'s^.

84. When any department^^^ of the public service of a
State becomes transferred to the Commonwealth, all officers
of the department^^^ shall become subject to the control of the
Executive Government of the Commonwealth^.

Any such officer who is not retained^" in the service of
the Commonwealth shall, unless he is appointed to some other
office of equal emolument in the public service of the State,
be entitled to receive from the State any pension, gratuity,
or other compensation payable under the law of the State on
the abolition of his office.

816 COMMENTARIES ON THE CONSTITUTION. [Sec. 84.

Any such officer who is retained^^ in the service of the
Commonwealth shall preserve all his existing and accru-
ing rights, and shall be entitled to retire from office at the
time, and on the 'pension or retiring allowance, which would
be permitted by the law of the State if his service with the
Commonwealth were a continuation of his service with the
State. Such pension or retiring allowance shall be paid to
him by the Commonwealth ; but the State shall pay to the
Commonwealth a part thereof^ to be calculated on the propor-
tion which his term of service with the State bears to his
whole term of service, and for the purpose of the calculation
his salary shall be taken to be that paid to him by the State
at the time of the transfer.

Any officer^" who is, at the establishment of the Common-
wealth, in the public service of a State, and who is, by
consent of the Governor of the State with the advice of the
Executive Council thereof, transferred to the public service
of the Commonwealth, shall have the same rights as if he
had been an officer of a departuient transferred to the
Commonwealth and were retained in the service of the
Commonwealth.

Canada.— Until the Parliament of Canada otherwise provides, all officers of the several
provinces having duties to discharge in relation to matters other than those coming within
the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces,
shall be officers of Canada, and shall continue to discharge the duties of their respective
offices under the same liabilities, responsibilities, and penalties, as if the Union had not
been made. — B.N.A. Act, sec. 130.

Historical Note. — The clause as drafted and passed at the Sydnej- Convention,
1891, merely provided that all officers of the transferred departments should become
subject to the control of the Federal Executive, and that their existing rights should be
preserved. Mr. Gordon moved to add " But the Commonwealth shall not be responsible
for any pensions agreed to be paid by the States." This was negatived. (Conv. Deb ,
Syd., 1891, pp. 801-2,)

At the Adelaide Session, 1897, the draft of 1891 was followed, except that in place
of the provision as to existing rights the following words were added : "and thereupon
every such officer shall be entitled to receive from the State any gratuitj', pension, or
retiring allowance payable under the law of the State on abolition of his office." It
was pointed out in Committee that different provision was needed for those who w ere
retained and those who were not : also that accruing as well as existing rights ought to
be preserved. The clause was postponed, and afterwards an amendment moved bj' Mr.
Barton was agreed to, providing that officers not retained in tlie service should receive
from the State the proper compensation on abolition of office, whilst officers retaine<l
should eventually be entitled to a retiring allowance to be paid by the Commonwealth
and the State jointly. On Mr. Deakin's motion, words preset ving the existing and
accruing rights of such officers were added. (Conv. Deb. Adel., pp. 866-70, 1444-51.)

At the Melbourne Session, a suggestion by the Legislative Assembly of Western
Australia, to insert the words " unless he is appointed to some other office in the State,"
was considered, and formally negatived on the understanding that it would be con-
sidered by the Drafting Committee. (Conv. Deb., Melb., pp. 990-8.) A re -draft was
.subsequently adopted, the last paragraph being added (Conv. Deb., Melb., pp. 1899-
1901) ; and the clause was further verbally amended after the fourth Report.

■§§351-353.] FINANCE AND TRADE. 817

§ 351. "Transfer of OfiBcers."

Object of Sectiox. — The object of this section is to prevent any hardship to the
•officei-s of transferred departments by reason of their change of masters. Many of
them would, under the public service laws of their respective States, have become
entitled to pensions or retiring allowances ; many more, though not yet so entitled,
would have inchoate or accruing rights on which they had based legitimate expectations.
It was necessary to give the Federal Government an entirely free hand in the organiza-
tion of the Public Service of the Commonwealth and in the appointment and dismissal
of officers ; but it weis thought fair that the existing and accruing rights of the officers
of the transferred departments should be expressh' recognized in the Constitution, and
that the respective responsibilities of the States and the Commonwealth in this respect
should be clearly defined.

Two events had to be provided for : the event (which would probably be excep-
tional) of any such officer not being retained in the service of the Commonwealth, and
the event of his being so retained.

(1.) With regard to any officer whose services are not required by the Common*
wealth, the refusal of the Commonwealth to employ him is treated as being equivalent
to the abolition of his office by the State, so that he will be entitled to claim from the
State any compensation payable under the law of the State on such abolition. An
exception, however, is made in the event of his being appointed by the State to some
other office of equal emolument.

(2. ) Any officer retained in the service of the Commonwealth is allowed to carry
with him the benefit of the public service laws of his State, so as to preserve " all his
existing and accruing rights." His rights of retirement, and of pension or retiring
allowance, continue to be governed by the law of the State, as though he were con-
tinuing in the service of the State — except that such rights are now rights against the
Commonwealth. When such pension or retiring allowance becomes payable, the officer
himself looks only to the Commonwealth ; but the Commonwealth has recoui-se against
the State for a part thereof, based on the calculation prescribed.

The last paragraph provides for a different class of cases, li, by arrangement
between the Commonwealth and a State, any public officer, not belonging to one of the
transferred departments, is transferred to the public service of the Commonwealth, he is
to have the same rights as if he had been an officer of a transferred department, and
were retained in the service of the Commonwealth.

§ 352. "Any Department.**

The departments of customs and excise become transferred on the establishment of the
Commonwealth ; the departments of posts, telegraphs, and telephones, naval and military
defence, lighthouses, lightships, beacons and buoj's, and quarantine, are to become
transferred on a date or dates to be proclaimed by the Governor-General. (See sec. 69.)

By virtue of the legislative powers of the Parliament, other departments which
come wholly within the scope of those powers can be taken over from time to time —
such, for instance, as the departments of copj-right, patents, and trade marks. In the
exercise of its legislative power over matters referred to it by the States, the Federal
Parliament may also be able to assume control over other departments. (See s. 51,
subs, xxxvii.)

§ 353. "All Officers of the Department.*'

Where the department transferred is the whole of one of the great political depart-
ments—as, for instance, the department of posts, telegraphs and telephones — the
interpretation of the term " all officers " presents no difficulty ; it evidently includes
every officer, whatever his tenure or the nature of his employment, from the permanent
head of the department downwards ; but not, of course, the political head. When the
department ceases to exist as a " State Department," the ministerial portfolio
established by the State in connection with it must also cease to exist.

818 COMMENTARIES ON THE CONSTITUTION. [Sec. 84.

Where the department transferred is a sub-department— as, for instance, tlie
department of quarantine— it seems that only those othcers who are exclusively officers
of the sub-department will become subject to the control of the Commonwealth.

§ 354. « Subject to the Control of the Executive
GoYernment of the Commonwealth."

Every department, on being transferred to the Commonwealth, becomes at once a
department of the public service of the Commonwealth, and subject to the provisions of
Chap. III. of the Constitution. The appointment and removal of its officers is thence-
forth vested in the Governor- General in Council, until other provision is made (sec. 67),
and its administration is vested in the Executive Government (sees. 61-64)

§ 355. « Any Such Officer Who is not Retained."

The rights of an officer of a transferred department ditfer accordingly as he is
"retained" or "not retained" in the service of the Commonwealth, and it becomes
important to define exactly what is meant by these expressions. Is the executive
government of the Commonwealth required to make any express declaration of retainer
or non-retainer ? And if so, when must its choice be made ?

It is clear, in the first place, that the Federal Government has an option to retain,
or not to retain, any officer ; and it is also clear that such option cannot easily be exer-
cised at the actual moment of transfer — at least with regard to the departments trans-
ferred at the establishment of the Commonwealth. It would seem, also, that the fact of
transfer does not alter the obligation upon each officer to continue, as a servant of the
Crown, to perform the duties of his office ; though he is subject thenceforth to the
control, not of the State, but of the Federal Government. Every officer of the depart-
ment becomes " subject to the control" of the Federal Government, but every officer is
not necessarily "retained in the service of the Commonwealth." Apparently, there-
fore, the option of retaining or not retaining an officer is one which the Federal Govern-
ment may exercise within a reasonable time after transfer, and the mere fact that the
Government assumes the control and accepts the services of an officer at the outset need
not necessarily imply a decision to retain him. On the other hand, acquiescence by the
Federal Government for any time longer than was reasonably necessary might fairly be
held, in the absence of a definite notification to the contrary, to imply a decision to
retain an officer in the service.

In respect of a State officer who is " not retained in the service of the Common-
wealth," the Commonwealth has no liability whatever. His only claim for compensation
is against the State, which is under a constitutional obligation to treat him as though
his office had been abolished by the Government of the State.

§ 356. «'Any Such Officer Who is Retained."

The object of this provision is to give to those State officers who are retained by the
Commonwealth the same rights which they would have had if they had continued in the
service of the State. These rights are of course determined by the laws of the State at
the moment of transfer. The words of the Constitution are necessarily general ; and it
may be that federal legislation — and perhaps State legislation also — will be necessary in
order to give full effect to this intention. Questions, for instance, as to past and future
contributions to superannuation funds may need further provision. But the general
intention of the section is clear ; and the rest may safely be left to the sense of justice
of the Federal and State Governments.

§ 357. '' Any Officer ... in the Public Service of a

State."

By the last paragraph of the above section the Federal Government, with the con-
sent of the Government of any State concerned, is authorized to take over State officers
not belonging to transferred departments, but who may be required in the service of
the Commonwealth. This provision contemplates the creation of new departments of

§357.] FINANCE AND TRADE. 819

service which will be absolutely necessary on the establishment of the Commonwealth :
such as those which will be in immediate attendance on the Federal Parliament and the
Federal Executive. The officers so taken over are guaranteed the same rights as if they
had been officers of departments transferred, and as if they had been retained in the
service of the Commonwealth under the earlier part of the section.

Transfer of Property of State^^s^

85. When any department of the pubHc service of a
State is transferred to the Commonwealth —

(i.) All property of the State of any kind^^^ used exclusively
in connexion with the department^, shall become
vested in the Comnionwealth^^^ ; but, in the case of
the departments controlling customs and excise
and bounties, for such time only as the Governor-
General in Council may declare to be necessary,
(ii.) The Commonwealth may acquire any property of the
State, of any kind used, but not exclusively
used^^ in connexion with the department ; the
value thereof shall, if no agreement can be made,
be ascertained in, as nearly as may be, the manner
in which the value of land, or of an interest in
land, taken by the State for public purposes is
ascertained under the law of the State in force at
the establishment of the Commonwealth.

(iii.) The Commonwealth shall compensate the State^ for the
value of any property passing to the Common-
wealth under this section ; if no agreement can be
madeasto the mode of compensation^^, it shall bede-
termined under laws to be made by the Parliament.

(iv.) The Commonwealth shall, at the date of the transfer,
assume the current obligfations of the State in
respect of the department transferred^®^

Casada. — The public works and property of each Province, enumerated in the third schedule
to this Act, shall be the property of Canada. — B.X.A. Act, sec. ItS.

HiSTOKiCAL Note. — The clause as originally framed at the Sydney Convention,
1891, did not distinguish between exclusive and partial use ; and the value was to be
ascertained under the resumption laws of the State. The provision for assuming the
obligations of the State was contained in the clause providing for the transfer of the
departments.

At the Adelaide Session, 1897, the 1891 draft was adopted with verbal alterations.
Air. Wise moved to £idd " railway's, " in order to put his views on record ; but withdrew
the amendment for the present. (Conv. Deb., Adel., pp. 870-7, 120.3-4.)

At the Melbourne Session, an amendment of the Legislative Assembly of Western
Australia, to restrict the clause to property "exclusively used," was negatived. Mr.
Kingston suggested that the vesting should be at the option of the Commonwealth. An
amendment of the Legislative Assembly of South Australia, that payment may be made
by taking over equivalent part of public debt, was negatived, Mr. Barton promising a
redraft. The clause was redrafted, and verbally amended after the 4th Report. (Conv.
Deb., Melb., pp. 998-1007, 1901-6 )

«20 COMMENTARIES ON THE CONSTITUTION. [Sec. 85.

§ 358. « Transfer of Property of State."

Object of Sectioit. — The general principle embodied in this section is that the
lands, buildings, and other public property used by the transferred departments shall be
taken over by the Commonwealth, and paid for at their fair value ; but the necessary
provision for this is complicated by two circumstances.

In the first place, property used by a transferred department is not always
exclusively so used ; the department may occupy part of a building the rest of which is
occupied by a department not transferred, or it may make use of property which belongs
wholly to another department. For example, telegraph lines in many cases run along
the railway lines, and many post and telegraph offices are situated upon railway premises.

In the second place, all the property used in connection with the collection of
customs on the inland borders will not be required by the Commonwealth after inter-
colonial frectrade is established, and therefore only needs to be transferred for a limited
time.

The section is therefore framed so that property used exclusively by a transferred
department shall be vested at once in the Commonwealth, either permanently or
temporarily as the case may be ; whilst property used, but not exclusively, by a trans-
ferred department may be acquired by the Commonwealth at its option.

§ 359. « All Property of the State, of any Kind."

" Property of the State " means the public property of the State, and includes real
as well as personal property — lands, buildings, public works, vessels, materials, and so
forth. In earlier drafts these particular words were inserted ; but they were afterwards
discarded in favour of the general word "property." A similar expression is used in
the B.N. A. Act, sees. 108 and 117, where the '-property" of a province is referred to.
See also sec. 51 — xxxi. ^the acquisition of property for public purposes), and sec. 54— i.,
giving the Federal Parliament exclusive power over all places acquired by the Common-
wealth for public purposes.

§ 360. "Used Exclusively in Connection with the
Department."

The chief difficulty under this sub-section is likely to arise in ascertaining exactly
what property comes within this description. No mode of ascertaining this is prescribed,
and it is therefore a question of interpretation upon the facts. In most cases there will
probably be little doubt ; and, in those cases where doubt does arise, the question
(which is one of proprietary rights only — see note below) will bo capable of settlement
by agreement between the governments of the Commonwealth and the State, under the
authority of the respective Parliaments.

§ 361. " Vested in the Commonwealth."

The effect of this expression is to vest the property in the Commonwealth when the
department is transferred — i.e., from the time of transfer — without the need of any
legal assurance (see Conv. Deb., Adel , p. 871) ; and the result of the vesting would
seem to be that the Commonwealth acquires the property to exactly the same extent a.s
if it had been acquired under the next sub-section, or under sec. 51, subs. xxxi. The
difference is in the mode of vesting, not in the nature of the interest acquired.
Compare the phrase used in sec. 125, which provides that the seat of Government shall
be within territory " which shall have been granted to or acquired by the Common-
wealth and shall be vested in and belong to the Commonwealth." The substantial
difference between the two expressions is that under this section the property is vested,
and under sec. 125 the territory only. The effect of this section, considered by itself,
seems to be to transfer only the proprietary rights of the State, and not its territorial
rights; but sec. 52 supplements this by giving the Federal Parliament "exclusive
power to make laws " with respect to places acquired by the Commonwealth for public
purposes.

§§ 362-363.]

FINANCE AND TRADE.

821

§ 362. "The Commonwealth may Acquire any Property
. . . not Exclusively Used."

The Commonwealth has a general power (sec. 51 — xxxi.) to make laws for the
acquisition of property on just terms from any State for any purpose in respect of which
the Parliament has power to make laws. Legislation under that section would — assum-
ing legislation to be necessary— apply to acquisitions for the purpose of this section ;
except as to the ascertainment of value and the mode of compensation, for which special
provision is here made. If the Commonwealth and the State are agreed as to the
property to be transferred, it appears that this section of itself is sufficient authority
for the transfer, without any federal legislation ; but if there is any dispute, legislation
will be necessary to prescribe the mode of acquisition.

§ 363. " The Commonwealth shall Compensate the State."

The following returns of the value of the property of the chief departments
proposed to be transferred are taken from Papers on Federation circulated by the
Government of Victoria, 1897, p. 296 : —

Estimated Present Valites of Property of Chief Departmexts Proposed

TO BE Transferred to a Federal Government.

(a) DUtinguisking Departments.

Departments.

Victoria.

Other Colonies.

Total.

Customs —

Buildings, fittings, furniture, &c

Land ...

£
120,000
310,000

£
391,000
770,000

£
511,000

1,080,000

Total

430,000

1,161,000

1,591,000

Posts and Telegraphs —

Buildings, apparatus, &c

Lfind

875,000
574,000

3,260,000
1,530,000

4,135,000
2,104,000

Total

1,449,000

4,790,000

6,239,000

Defences —

Works, armament, btiildings, furniture, &c.
Land

506,000
67,000

880,000
87,000

1,386,000
154,000

Total

573,000

967,000

1,540,000

Coast and harbour light-houses, buoys, and
beacons

198,000

656,000

854,000

Quarantine —

Buildings, &c ...

Land

22,000
3,000

51.000
5,000

73,000
8,000

Total

25,000

56,000

81,000

Mint-
Buildings, &c. . .

Land

62,000
8,000

61,000
9,000

123,000
17,000

Total

70,000

140,000

Grand Total —

Buildings, <fec

Land

1,783,000
962,000

5,299,000
2,401,000

7,082,000
3,363,000

Total

2,745,000

7,700,000

10,445,000

Note.— The above fiarures must be regarded only as a rough approximation, in the absence of definite
iulormation on the subject, which has been applied for but not yet received.

822

COMMENTARIES ON THE CONSTITUTION. [Sec. 86.

(b) Distinguishing Colonies, and shoicing also Cost of Maintenance and Interest.

Capital Value of—

Estimated Cost
of Maintenance

of Buildings,
Furniture, &c.,

at li per cent,
of Capital Cost.

Interest

Colony.

Lands.

Buildings,

Works,

Furniture,

and Fittings.

Total

on Capital
Cost at 3
per cent.

Victoria

New South Wales

South Australia

Tasmania

Western Australia

Queensland

£
962,000
1,121,000
582,000
115,000
132,000
451,000

£
1,783,000
2,079,000
1,083,000
321,000
677,000
1,139,000

£
2,745,000
3,200,000
1,665,000
436,000
809,000
1,590,000

£
27,000
31,000
16,000
5,000
10,000
17,000

£
82,000
96,000
50,000
13,000
24,000
48,000

Less cost of maintenance of
defences

3,363,000

7,082,000

10,445,000

106,000
21,000

313,000

Total

85,000

§ 364. " The Mode of Compensation."

These words were inserted at the Melbourne Convention (see Debates, pp. 1001-7)
To carry out, with a somewhat wider scope, a suggestion of the Legislative Assembly of
South Australia that payment might be made by taking over an equivalent part of the
public debt of the State. Tlie amount of compensation is arrived at under subs, ii.,
and subs. iii. then provides that the mode of compensation may be determined by
Parliament. It seems that it will be open to the Parliament under tbis section to pro-
vide that compensation may be made in cash, or in instalments, or by an annual rental,
or by issuing debentures, or by taking over an equivalent part of the public debt, or in
any other way whicli will give to the State the value agreed upon or ascertained.

§ 365. " The Current Obligations of the State in Respect
of the Department."

The transfer of the property used in connection with the departments having been
provided for, it was necessary also to provide for the transfer of claims against the
departments. This provision is intended to meet the case of current contracts with the
department, by requiring that the obligations under them should be taken over by the
Commonwealth. The word "current" was inserted by the Drafting Committee to
meet a criticism that the words might be construed to extend to loan moneys spent in
connection with the department. (See Conv. Deb., Adel., pp. 920-2 ; Melb., p. 1902.)
It is quite clear that the words refer only to the " current'" obligations incurred in the
course of departmental business, and have no reference whatever to capital invested by
the State in departmental works, or the obligations which the State may have incurred
in raising such capital — obligations which cannot be said to be incurred " in connection
with " tlie department on which the money is afterwards spent.

It was also suggested (Conv. Deb., Melb., pp. 1905-6) that contracts of service
entered into by the department with its officers might be held to be included ; but
seeing that these are expressly dealt with in the preceding section, this construction
would be superfluous as well as forced.

§§366-367] FINANCE AND TRADE. 823

86. On the establishment of the Commonwealth, the
collection and control of duties of customs and of excise'^,
and the control of the payment of bounties^^', shall pass to
the Executive Government of the Commonwealth.

Historical Note. — In the Commonwealth Bill of 1891, this provision, in snb-
stantially the same wortls (except that " the payment of bounties," not " the control of
the payment of bounties," passed to the Commonwealth) stood as a paragraph of
Clause 4, Chap. IV. (Exclusive power over customs, &c.) There were also pro%'isions
(clauses 7, 9) that until the uniform tariff, bounties payable in the several States should
lie paid by the oflBcers of the Commonwealth, and charged against the States.

At the Adelaide session, 1897, the pro^•^8ion, following the draft of 1891, still stood
part of the " exclusive power " clause. The debate, which turned entirely on bounties, is
summarized in Historical Note to sec. 90, Conv. Deb., Adel., pp. 835, 838-66.

At the Melbourne session the paragraph was struck out, and re-inserted as a new
clause. An amendment by Sir George Turner, excepting State Iwunties consented to
by the Federal Parliament, is noted under sec. 91, Conv. Deb., Melb., pp. 964-5, 990,
2343-65.

.:; 366. " The Collection and Control of Duties of Customs

and of Excise."

Collection. — By sec. 69 the departments of customs and excise become transferred
to the Commonwealth on its establishment, and by this section the collection of the
duties also passes at once to the Executive Government of the Commonwealth. That is
to say, the duties continue to be collected by the same departments as before, but on
behalf of the Commonwealth instead of the several States.

Until the imposition of the federal tariff (sec. 89) customs and excise duties will
continue to be collected iu the several States, according to their respective tariffs —
which do not "cease to have effect" until then (sec. 90). During this period, customs
duties will of course lie collected on intercolonial trade as well as on imports from
abroad. As long as the medley of tariffs remains, it Mould obviously be impracticable
to allow the free passage of gootls across the fiorders, and therefore intercolonial free-
trade is postponed until the xmiform tariff is in force (sec. 92).

Meanwhile, though the duties themselves are collected and controlled by the Com-
mons ealth, the tariff of each State remains alterable by the Parliament of the State.
The power to impose duties of customs and excise does not become exclusive with the
Commonwealth until the first federal tariff is imposed (sec. 90) ; and until it becomes
exclusive, the concurrent power of the State Parliament continues (sec. 107).

Coxtrol. — By " control" of the duties is meant the disposal of them after
collection. That "control" is of course subject to the pro^■isions of the Constitution.
The duties collected, instead of being paid into the Treasuries of the respective States,
are paid into the Consolidated Revenue Fund of the Commonwealth (sec. 81) to be dealt
with as the Constitution provides.

^< 367. " The Control of the Payment of Bounties."

The Bill of 1891 provided (chap. IV., sees. 4, 7, 9) that " the payment of bounties "
should pass to the Commonwealth ; that until the imposition of uniform duties the
bovmties payable in each State should be " paid by the officers of the Commonwealth ; "
and that the amount so paid on behalf of any State should be deducted from its share of
the surplus. In the Adelaide draft of 1897 these provisions were all omitted, and
nothing but " the control of the payment of bounties " passed to the Commonwealth.

824 COMMENTARIES ON THE CONSTITUTION. [Sec. 86.

What passes to the Executive Government of the Commonvi^ealth by these words
is not a liability, but a right of control. "Control" means regulation, government,
direction ; it is a matter of authority, not of obligation. To interpret the somewhat
vague words of this provision, it is necessary to refer to the other sections of the
Constitution dealing with bounties.

Sec. 51 — iii. empowers the Federal Parliament to make laws with respect to
" bounties on the production or export of goods, but so that such bounties shall be
uniform throughout the Commonwealth."

Sec. 90 provides that on the imposition of uniform duties, the power of the Com-
monwealth to grant bounties shall become exclusive ; that thereupon all laws of the
States offering bounties shall cease to have effect ; but that " any grant of or agreement
for any such bounty " shall be good if made before 30th June, 189S. It follows from
that section, read together with sec. 107, that imtil the imposition of uniform duties
the States may make laws offering bounties ; but that when the uniform tariff begins
the laws so made must cease to have effect and the bounties so offered (unless granted
or contracted for before the date named) must cease also.

Sec. 90 declares that nothing in the Constitution prohibits a State from granting
any bounty for mining for metals, or from granting, with the consent of both Houses of
the Federal Parliament, any bounty whatever.

The Constitution therefore refers to two kinds of bounties — Federal bounties and
State bounties. With regard to Federal bounties, the words of this section raise no
difficulty ; whenever such bounties have been authorized by the Parliament the Federal
Executive will control their payment as it controls every other part of the federal
administration.

With regard to State bounties, it is hard to see what control the Federal Executive
can exercise over payments, beyond seeing that the requirements of the Constitution
are complied with. State bounties may come under four heads : (1) Before the uniform
tariff each State may, as before, grant what bounties it pleases. (2) After the uniform
tariff, there may be (a) State bounties to the extent of grants made, or binding agree-
ments entered into, before 30th June, 1898 ; (b) State bounties on mining for metals ;
(c) any State bounties granted with the consent of both Houses of the Federal Parlia-
ment. As to grants and agreements made before 30th June, 1898, see Notes, § 383,
infra. With respect to State bounties on mining for metals, or given with the consent
of the Federal Parliament, the powers reserved to the States leave little room for
federal control. Such bounties are ari'angements between a State and its producers ;
they are granted by the State, and payable by the State, and involve no obligation on
the part of the Commonwealth.

87. During a period of ten years after the establishment
of the Commonwealth and thereafter until the Parliament
otherwise provides^^**, of the net revenue^^^ of the Common-
wealth from duties of customs and of excise not more than
one-fourth shall be applied annually by the Commonwealth
towards its expenditure^^".

The balance shall, in accordance with this Constitution,
be paid to the several States^^\ or applied towards the
payment of interest''^^ on debts of the several States taken
over by the Commonwealth.

FINANCE AND TRADE. 825

Historical Note. — The Commonwealth Bill of 1891 contained no guarantee to the
States, though the desire for some guarantee was prominent throughout the financial
debate. It was specially emphasized by Sir John Bray in his proposal to make the
Commonwealth liable for the public debts of the States. (Conv. Deb., Syd., 1891,
pp. 836-49.)

In the Finance Committee appointed at the Adelaide Session of the Convention
of 1897-8 to frame financial resolutions for submission to the Constitutional Committee
the guarantee question was raised at once, and various forms of guarantee were
suggested. Almost the first of them was the following, moved by ilr. Holder: —
" That, until a uniform tariff has come into force, each State .... shall receive from,
the federal authority, in monthly instalments, a return of 70 per cent, of the customs
and excise duties contributed by the State." (Minutes of Committee, p. 5.) Mr.
Holder's proposal, which was almost identical with this section, was negatived, and the
guarantees resolved on by the Committee, and agreed to by the Convention, were a
limitation of federal expenditure, and a provision for the return of a minimum aggregate
surplus (see p. 170, supra). (Conv. Deb., Adel., pp. 889, 1053-67.)

At the Sydney session, 1897, in the general financial debate (p. 176, supra) the
question of guarantees was prominent, but no definite proposition was made.

At the Melbourne session (Debates, pp. 2378-9, 2422-31, 2456-7), on the discussion
of the Finance Committee's report, which recommended the omission of the Adelaide
guarantees, Mr. Holder again (pp. 890-3) suggested a return of a fixed proportion of the
revenue, stating that he had put it before both Finance Committees, and now wished
to put it before the Convention. He read a clause which he had drafted to carry out
his \'iews, and discussed the objections which had been raised. The proposal was
referred to by Mr. Solomon (pp. 1056-7), by Mr. Reid (p. 1070), by Sir John Downer
(p. 1074), and by Mr. Lyne (p. 1082). The Adelaide guarantees were excised ; but
various substitutes were unsuccessfully proposed. First came Mr. Henry's "financial
assistance " clause (see Historical Xote to sec. 96). Then, on the discussion of the
West Australian clause (guaranteeing to Western Australia a subsidy which would
equalize the " proportionate net loss " of that colony with the "average proportionate
net losses " of the other colonies), Sir John Forrest moved an amendment to make the
clause apply to all the States — which he afterwards withdrew in favour of a clause of
Sir George Turner's, guaranteeing to each State a return equal to its so-called "net
loss," calculated on the customs and excise revenue collected in the State under the
federal tariff and the amount which would have been collected on the same trade under
the superseded provincial tariff. This also was withdrawn, but Mr. Isaacs aftei-wards
brought it up again in a modified form, and it was finally negatived. (Conv. Deb.,
Melb., pp. 1122-90, 1244-9.) At last, on the second recommittal. Sir Edward Braddon
brought forward and carried the first draft of the " Braddon clause," which, after being
twice recommitted, was ultimately agreed to (p. 198, supra). (Conv. Deb., Melb.,
pp. 2378-9, 2422-31, 2456-7.) After the fourth Report iv was verbally amended.

After the failure of the Convention Bill to secure the statutory majority in New
South Wales, both Houses of the New South Wales Parliament asked for the omission
of the clause (see p. 216, supra). This would have been agreed to bj* the Premiers'
Conference, 1899, if another form of guarantee could have been suggested which would
have been equally satisfactory ; but all alternative suggestions were thought by Mr.
Reid to be more objectionable than the clause itself. By way of compromise, the words
" During a period of ten years, and thereafter until the Parliament otherwise provides"
were inserted.

826 COMMENTARIES ON THE CONSTITUTION. [See 87.

§ 368. "During a Period of Ten Years after the Estab-
lishment of the Commonw^ealth, and thereafter until
the Parliament otherwise Provides."

These words were inserted at the Premiers' Conference (p. 219, supra). Compare
the amendment proposed by Mr. Barton. (Conv. Deb., Melb., p. 2424.) For ten years
after the establishment of the Commonwealth this section is a constitutional provision,
alterable only by the process of constitutional amendment. At the expiration of that
time, it will, in effect, descend to the level of an Act of the Federal Parliament ; that is
to say, it will, by virtue of the words " until the Parliament otherwise provides " (see
sec. 51 — xxxvi.) become subject to alteration or repeal by simple federal legislation. If
the Parliament is satisfied with its operation, it will remain in force, but always on
sufferance.

This limitation removes one of the chief objections to the section, namely, its want
of elasticity. For the present, and in the near future, the section is not likely to cause
much inconvenience, but in the unknown future, when conditions have changed — as
they must change— it may seriously hamper federal finance. It fixes an arbitrary and
unalterable proportion, on one side, in the apportionment of customs and excise
revenue between the central and local governments. Should it be desired to increase
the proportion of customs and excise revenue paid to the States, the section would not
stand in the way ; but should it be desired to increase the proportion which may be spent
by the Commonwealth, it would offer an insurmountable barrier. There is no " eternal
principle " in the three-to-one proportion, which is based mereh' on present financial
conditions ; and its loss of constitutional protection after ten j'ears obviates the danger
of undue rigidity.

§ 369 " Of the Net Revenue."

Net Revenue. — The "net revenue" from duties of customs and excise is the total
receipts from those sources after deducting the cost of collection. No attempt is made
in the constitution to define the deductions which may be made in order to arrive at
the net revenue ; this is a matter of book-keeping, which is left wholly to the Executive
Government. The Federal Parliament, under its incidental legislative power (sec. 51
— xxxix ; sec. 52 — ii. ) will presumably have power to regulate the matter ; but it is
hard to see how the iiigh Court could be invoked by any person or State that
might happen to be dissatisfied. It seems to be one of those political matters with
which the judiciary have no power to interfere.

Effect of the Section. —The object of this section is to secure a constitutional
guarantee that, during the period named, at least three-fourths of the net customs and
excise revenue raised by the Commonwealth shall be devoted to State purposes ; and
its explanation is found in the fact that whilst the transfer of customs and excise duties
deprives the federating colonies of a large revenue, the estimated expenditure of which
the colonies are relieved, or with which the Commonwealth is saddled, are not more
than one-fourth of that amount. (See Historical Introduction and Historical Note.)

The probable efifect of the clause on the finances of the Commonwealth and of the
States has several aspects, which may be dealt with separately. The chief questions
are:— How will it affect (1) the amount of federal revenue, (2) the amount of federal
expenditure, (3) the mode of federal taxation, (4) the finances of the States ?

(1) The Amount of Federal Bevemie.— One oi the most effective arguments against
the Constitution in New South Wales, in the campaigns of 1898 and 1899, was that the
Braddon clause would necessitate an immense burden of taxation— the stock phrases
being that it required " four times as much taxation as was necessary," or that the
Federal Treasurer " for every £1 he wanted, would have to raise £4." The fallacy
of this ingenious perversion of the clause was that it utterly ignored the requirements

^ 369.]

FINANCE AND TRADE. 827

of the States. The Convention found, from the figures before them, that the Common-
wealth, without Queensland, if it raised the very moderate revenue of £6,000,000, would
not need, Jor federal expenditure, more than one-fourth of that sum, whilst the States
would need the rest. The representatives of all the colonies except New South Wales
asked for some guarantee — first, that the Commonwealth would not raise too little;
next, that the Commonwealth would not spend too much. Looked at apart from the
circumstances, it seems that this section operates in both these ways, but a few figures
will show that it is practicalh' no guarantee at all of the amount to be raised through
the customs, because the amount which, owing to other circumstances, will inevitably
be raised through the customs, is more than four times the ordinary expenditure of the
Commonwealth.

The nel( customs and excise revenue raised in the six federating colonies for the year
1899 was £7.402,333 (Coghlan s Statistics of the Seven Colonies, 1900, p. 23). It may be
taken for granted — without any guarantee— that the federal tariff will be framed to
bring in not less than this amount. Of this the Commonwaalth would be able imder
this section to spend, for federal purposes, one-fourth, or £1,850,000 ; an amount
which exceeds the most lavish estimates of what will be required.

The Braddon clause, therefore, will not, under ordinary circumstances, increase the
revenue which the Commonwealth will require to raise ; even assuming — what will
doubtless be the case for many jears— that practically the whole of the federal taxation
will be raised through customs and excise. Any great emergency, such as an increase
of defence expenditure in time of war, might greatly increase the necessities of the
Commonwealth ; but these necessities, should they arise, would probably be met by
temporary direct taxation. It should be noticed that the Constitution does not
explicitly require that a single penny should be raised hy customs and excise, but only
that three-fourths of whatever is so raised should be devoted to State purposes.

(2) The Amoimt of Federal Expenditure. — The chief influence of the section will
undoubtedly be in the direction of ensuring economj- of federal expenditure. The
Federal Parliament will be subject to two opposite forces : the national impulse, which
will tend towards enlarging the scope of federal operations, and therefore of federal
expenditure ; and the restraining influence of the States, and of their representatives in
the Federal Parliament, which will make for limiting federal expenditure so as to
ensure an adequate subsidy to the States. The chief merit of the Braddon clause is
that it fixes the maximum ratio of federal to provincial expenditure, and thus checks,
during the early years of Federation, any attempt at an undue encroachment of the
federal power. If the vast revenues of the Commonwealth were entirely at its disposal,
subject only to such political pressure as the States could bring to bear, there might be
a serious temptation to federal extravagance, and a serious risk of the diminution of the
State revenues. But when extra expenditure by the Commonwealth means extra
taxation by the Commonwealth, all the checks of representative and responsible
government will be strengthened, and the temptations of the Federal Treasurer will be
correspondingly reduced.

(3) The Mode of Federal Taxation. — It has been argued (see for instance Mr. Rcid's
speech, Conv Deb., Melb., p. 2424) that this section would be a strong temptation to
the Federal Treasurer to resort to direct instead of indirect taxation, in order that he
might spend on federal purposes the whole of what he raised. If it were not for the
fact that the Federal Treasurer will have ample revenue under the section, and the
further fact that the fiscal circumstances of the States will make it politically necessary
for the Treasurer to raise through the customs at least as much as the aggregate raised
in all the colonies Ijefore Federation, this argument would have much weight. If
the section were permanent, a time might come when it would have even gi-eater
weight. But during the first ten years of Federation it is most unlikely that any resort
will be made to federal direct taxation. The real problem will not be the finances of
the Commonwealth, but the finances of the States. Taxation difficulties will arise, not

828 COMMENTARIES ON THE CONSTITUTION. [Sec. 87.

in respect of federal expenditure, but in respect of State expenditure ; and if any
increase of direct taxation is required to meet the varying needs of the States, local
taxation proportioned to the needs of each State will be a much easier policy than
uniform federal taxation which would fall equally on the States which required more
revenue and on those which did not. The federal tariflf will be framed to meet the
wants of the Australian people ; and if, when the desirable level of customs and excise
taxation has been reached, any States require more revenue for provincial purposes,
which it is thought fit to raise by direct taxation, provincial direct taxation and not
federal direct taxation is the obvious resource.

(4) The Finances of the States. — To the States, the section will doubtless be some
guarantee of a substantial return of revenue, but it is by no means a guarantee that
each State will be fully compensated, through its share of customs and excise duties,
for the difference between the revenue which it has surrendered and the expenditure of
which it has been relieved. In framing the federal tariff, the interests of each State
will be considered ; but when the tariff is framed, each State will have to cut its coat
according to the cloth. Some States may have to resort to a reduction of their local
expenditure, or an increase of their local taxation, or both. The different financial
requirements of six States cannot be met solely by uniform taxation ; and it can
hardly be doubted that one result of Federation will, sooner or later, be that provincial
taxation will be increasingly resorted to for provincial purposes.

§ 370. " Not More than One-fourth shall be Applied

Annually by the Commonwealth towards its

Expenditure."

The "expenditure" here referred to is the expenditure other than the cost of
collection, which has already been deducted in order to arrive at the net revenue. It
follows that the total amount which the Commonwealth can spend is made up of ( 1 ) the
cost of collecting the duties ; and (2) one-fourth of the net revenue.

This amount can only be expended under appropriation made by law ; and the
question arises whether, if such appropriation should exceed the specified proportion of
the revenue, the courts could pronounce the law to be invalid. It is submitted that the
answer must clearly be in the negative. As a matter of practical politics and invariable
constitutional usage, appropriations are made in advance of the I'eceipt of revenue, on
the basis of the Treasurer's estimates of what the revenue will be. It would be a grave
constitutional impropriety for the Governor-General to recommend, for Ministers to
submit, or for the Parliament to vote, expenditure in excess of the proper proportion of
the estimated revenue. It would also be a grave impropriety for the Treasurer to wilfully
over-estimate the prospects of revenue. At the same time, the most capable Treasurer,
with the very best intentions, maj' be over-sanguine ; and it would be absurd to hold
that the validity of an appropriation might depend on the accuracy of a Ministerial
forecast. The validity of a law must be absolutely determinable at the moment it is
passed ; a law which appropriates the year's revenue before the revenue is received,
and whilst its amount is matter for conjecture, cannot depend for its validity upon
subsequent events.

§ 371. " The Balance Shall, in Accordance with this
Constitution, be Paid to the Several States."

" The balance " is the balance of the net revenue from customs and excise.' This
section does not affect any revenue of the Commonwealth which may be derived from
other sources ; but merely requires that three-fourths of the net revenue from customs
and excise shall either be distributed among the States, on the basis of sees. 89 and 9.3^
or expended in payment of the interest on the debts of the States, under sec. 105.

4§ 372-373.] FINANCE AND TRADE. 829

§ 372. '' Or Applied towards the Payment of Interest."

These words were added at the suggestion of Mr. Nicholas Brown, to meet Mr.
Barton's objection that the clause as it then stood would make it impossible for the
Commonwealth to take over tne debts. (Conv. Deb. , Melb., pp. 2428-31.) Thisaddition
does not in any way touch the principle of the section, that the customs and excise
revenue shall be shared between the Commonwealth and the States in certain proportions ;
it merely provides that when the Commonwealth has taken over any of the debts,
payment of interest on accovmt of a State shall, for the purposes of the section, be
equivalent to payment to the State.

This provision suggests that the ultimate absorption of the federal surplus will be
efifected by devoting it to pajTuent of the interest bills of the States. Sir Samuel
Griffith, in a paper presented to the Government of Queensland in 1896 (entitled
" Notes on Australian Federation : its nature and probable effects ") pointed out that
the interest bills of the several colonies, both indi\-idually and in the aggregate,
showed a striking correspondence in amount with the customs and excise revenues ;
and he expressed the opinion that, though the correspondence was no doubt accidental,
it was likely to have some element of permanence. This fact at once makes it clear
that the States require the unexpended balance of the customs and excise revenues not
so much for the purpose of current expenditure as to meet the interest on their debts.
That explains why they cannot, as did the American States in 1787, surrender the
customs and excise revenues wholly to the union ; and it points to the probability that
when the debts have been taken over by the Commonwealth, and a few years'
experience of the working of the Constitution have been gained, the difficulties in the
way oi a final settlement of the financial problem will be far less than at present.

Uniform duties of customs,

88. Uniform duties of custoins^^ shall be imposed^'*
within two years after the establishment of the Common-
wealth.

Historical Note. — This provision was first suggested by the Finance Committee
at Adelaide, and was first drafted as part of the "exclusive power over customs'
clause. Sir George Turner suggested that the uniform tariff, instead of coming into
force suddenly, should be led up to bj' a sliding scale. The Drafting Committee
afterwards placed the provision as a separate clause. (Conv. Deb., Adel., pp. 83-5, 8.38.)

At the Sydney session, 1897, a general financial debate took place under cover of
this clause. (Debates, pp. 35-222. )

At the Melbourne session Mr. McMillan, while sympathizing -with the intention of
the clause, thought it a mistake to fetter the discretion of the Parliament. Mr. Keid
replied that New South Wales wanted a definite assurance of intercolonial free-trade,
and mthout this there would be no guarantee that the tariff would not be deadlocked.
(Conv. Deb., Melb., pp. 1011-4.)

§ 373. " Uniform Duties of Customs."

UxiFORM. — The word "uniform" here is merely descriptive. The absolute
constitutional requirement that all federal taxation, whether through the customs
or otherwise, shall be uniform, is contained in sec. 51 — ii., where the gift of federal
powers of taxation is expressly qualified by the words " so as not to discriminate
between States or parts of States."

Duties of Customs. — Customs are here mentioned alone, and not in connection
with excise, for a very simple reason. It was necessary to define the time at which

830 COMMENTARIES ON THE CONSTITUTION. [Sec. 88.

the provincial duties of customs and excise should cease ; and the time so fixed (sec. 90)
is the time of " the imposition of unifoim duties of customs." Under sec. 55, which
requires that laws imposing taxation shall deal with one kind of taxation only, customs
duties cannot be included in the same bill with excise duties ; and though the
Commonwealth will doubtless resort to both modes of taxation, and the two bills will
probably be passed at the same time, it was obviously necessary to make the termination
of provincial customs and excise, and the inauguration of intercolonial free-trade,
depend on a single, not a double, event.

§ 374. "Shall be Imposed."

This section is an unequivocal and unqualified direction to the Government and
Parliament of the Commonwealth to impose customs duties within the time fixed. Such
a direction in a constitutional instrument has almost the weight of a mandate, and
obedience to it may be anticipated with perfect confidence. It is necessary, however, to
observe that in strict legal effect the words must be interpreted as directory only, not
mandatory. The section does not contemplate non-compliance, and does not attempt to
prescribe any consequences of non-compliance. It would have been easy to enact that
at the expiration of the two years, if no federal tariff had been imposed, the provincial
duties of customs and excise should come to an end. That would have had the effect of
leaving the Commonwealth wholly without revenue from those sources in the event of
non-compliance ; but the Convention did not elect to frame any such pro\'ision. It
cannot be doubted that under the Constitution, if a tariff bill should not become law at
the expiration of the two years, the provincial duties would continue in force until it
did become law. Nor can it be doubted that such a law, though passed after the two
years had elapsed, would be as valid as if passed before ; otherwise it would have to be
held that the default of the first Parliament should cripple the taxing powers of the
Commonwealth for all time. The true interpretation of the section is that a solemn
constitutional obligation has been laid upon the Parliament ; but that no attempt has
been made to thi-eaten pains and penalties in the improbable event of that obligation not
being fulfilled.

The framing of the first uniform tariff for a group of communities whose present
tariffs are so widely divergent is certainly as difficult and responsible a task as could be
entrusted to any legislative body. It is a matter which intimately concerns, not only
the people of the Commonwealth as a whole, but the people of each State ; seeing that it
affects. the le venue necessities of each State, and also the industries and vested interests
that have grown up in each State in reliance upon the continuance of its present fiscal
policy. Unless opposing parties and interests recognize the necessity for compromise, it
is likely, not only that there will be a prolonged contest in each House, but that there
may also be a disagreement between the two Houses. The constitutional provisions for
deciding such a disagreement, together with the political urgency of the question, may
be trusted to bring about a settlement ; and to that end this provision may be expected
to contribute. The command of the people, by whom and for whom the Commonwealth
is established, that within two years all differences must be reconciled and a tarifl
agreed to, ought to be a powerful moral aid to the forces making for compromise and
settlement.

FINANCE AND TRADE. 831

Payment to States before unifonn duties.

89. Until the imposition of uniform duties of customs^^ —

(i.) The Commonwealth shall credit to each State^'*

the revenues collected therein by the

Com mon wealth^^

(ii.) The Commonwealth shall debit to each State —

(a) The expenditure therein of the Common-

wealth incurred solely for the maintenance
or continuance, as at the time of transfer^"^,
of any department transferred from the
State to the Commonwealth ;

(b) The proportion of the State, according to

the number of its people^^^, in the other
expenditure of the Commonwealth,
(iii.) The Commonwealth shall pay to each State
month by month^^ the balance (if any) in
favour of the State.

Historical Note. — For the history of this clause in the Commonwealth Bill of
.1891, see pp. 1.33, 139, supra. (Conv. Deb., Syd., 1891, pp. 802, 833.) The clause as
adopted provided for the apportionment of surplus revenue both before and after the
imposition of uniform duties, and was as follows : —

" 9. The Revenue of the Commonwealth shall be applied in the first instance in the
payment of the expenditure of the Commonwealth, which shall be charged to the
several States in proportion to the numbers of their people, and the surplus shall, until
uniform duties of Customs have been imposed, be returned to the several States or parts
of the Commonwealth in proportion to the amount of Revenue raised therein respectively,
subject to the following provisions : —

(1.) As to duties of Customs or Excise, provision shall be made for ascertaining,

as nearly as may be, the amount of duties collected in each State or part

of the Commonwealth in respect of dutiable goods which are afterwards

exported to another State or part of the Commonwealth, and the amount

of the duties so ascertained shall be taken to have been collected in the

State or part to which the goods have been so exported, and shall be

added to the duties actually collected in that State or part, and deducted

from the duties collected in the State or part of the Commonwealth from

which the goods were exported :

(2. ) As to the proceeds of direct taxes, the amount contributed or raised in

respect of income earned in any State or part of the Commonwealth, or

arising from property situated in any State or part of the Commonwealth,

and the amount contributed or raised iu respect of property situated in

any State or part of the Commonwealth, shall be taken to have been

raised in that State or part :

(3.) The amount of any bounties paid to any of the people of a State or part of

the Commonwealth shall be deducted from the amount of the surplus to

be returned to that State or part.

After uniform duties of Customs have been imposed, the surplus shall be returned

to the several States or parts of the Commonwealth in the same manner and proportions

until the Parliament otherwise prescribes.

Such returns shall be made monthly, or at such shorter intervals as may be con-
venient."

832 COMMENTARIES ON THE CONSTITUTION. [See. 69.

Adelaide Session, 1S97 (Debates, pp. 877-908 ; 1051-3).— For the history of the
clause in Adelaide, see pp. 169, 176, supra. It was passed in the following form :—

" 90. Until uniform duties of Customs have been imposed, there shall be shown, in
the books of the Treasury of the Commonwealth, in respect of each State : —

(i.) The revenues collected from duties of customs and excise and from the
performance of the service and the exercise of the powers transferred
from the States to the Commonwealth by this Constitution.

(ii.) The expenditure of the Commonwealth in the collection of duties of customs
and excise, and in the performance of the services and the exercise of
the powers transferred from the State to the Commonwealth by this
Constitution :

(iii. ) The monthly balance (if any) in favour of the State.

From the balance so found in favour of each State there shall be deducted its
share of the expenditure of the Commonwealth in the exercise of the original powers
given to it by this Constitution, and this share shall be in the numerical proportion of
the people of the State to those of the Commonwealth as shown by the latest
statistics of the Commonwealth. After such deduction the surplus shown to be due
to the State shall be paid to the State month by month."

Melbourne Session, 1898 (Debates, pp. 775, &c. ; 1038-9, 1906-11, 2375-8). In
accordance with the recommendations of the Finance Committee, the clause was recast,
the only difference in substance being a declaration that any expenditure " originated
by the requirements of the Commonwealth, in respect of services and powers transferred,
and not incurred solely for the maintenance or continuance in anj^ State of the services
as existing at the time of the transfer, shall be taken to be incurred by reason of the
original powers given to the Commonwealth by this Constitution." This somewhat
extended the scope of per capita division of the expenditure ; and Mr. O'Connor (pp.
1906-11) to meet what he thought was the wish of the Finance Committee, proposed
that the per capita basis should be further extended to the expenditure of all the
non-revenue producing departments — i.e., defence, light-houses, light-ships, beaoona»
and buoys, and quarantine. The amendment was, however, opposed by Mr. Holder,
Sir Geo. Turner, and Mr. Henry, who objected to expenditure being charged per capita
unless revenue were credited in the same way. At the suggestion of the Drafting
Committee, the clause was simplified by defining the two classes of expenditure as
they now stand in the section. It was further verbally amended after the 4th Report.

§ 375. " Until the Imposition of Uniform Duties of

Customs."

The Surplus Revenue. — This section forms one of a series of three (see sees. 93,
94) which provide for the distribution of the federal surplus among the States during
three periods ^ (1) Before the uniform tariff; (2) During the transition period
immediately following the imposition of the uniform tariff ; (3) After that period.

These three sections are widely different from any provision to be found in other
Federal Constitutions. In the United States, revenue raised by Congress from customs
and excise, or from any other source, is entirely at the disposal of the Federal
Government, and the States are obliged to rely entirely on direct taxation to meet
their own expenditure. In Canada, the Dominion must pay to each Province a certain
fixed subsidy for the support of its Government and Legislature, and also an annual
grant of 80 cents per head of its population as ascertained by the census of 1861— or,
in the case of Nova Scotia and New Brunswick, by each subsequent census till the
population of each amounts to 400,000 (B.N.A. Act, 1867, sec. 118). In 1869 Nova
Scotia obtained " better terms " from the Dominion Parliament. The new Provinces of
Manitoba and New Brunswick were afterwards admitted on a similar basis, and in
1873 the " better terms " were extended to all the Provinces. (See Garran, Coming
Commonwealth, pp. 91-2.)

|§ 375-376. FINANCE AND TRADE. 833

First Period. — This section providea for the distribution of surplus revenue during
the first of the three periods marked out by the Constitution. The characteristic of
this periotl is that free-trade and a uniform tariflf have not yet been introduced ; customs
duties are still collected on intercolonial imports, as well as on imports from abroad,
according to the tariffs of the several States ; and sees. 90 and 92 are not yet in
operation.

The one difference between this section and sec. 93, which provides for distribution
during the first five j'ears after the uniform tariff, arises out of these circumstances.
The ascertainment of the revenue contributed by each State does not involve the book-
keeping adjustment which is afterwards necessary : because, so long as each colony is
surrounded by a circle of Custom-houses, it may be considered for all practical purposes
that the dutiable goo<ls imported into each State, or produced in each State, are intended
for consumption in that State, and, therefore, that the revenue actuallj' collected in any
State by the Commonwealth is practically the revenue contributed by the people of that
State. During this period, therefore, the crediting of revenue on the basis of contribu-
tions is a very simple matter.

§ 376. '' The Commonwealth shall credit to each State."

These words impose upon the Federal Treasury the duty of keeping an account of
the revenues collected in each State by the Commonwealth. The clause, as framed at
Adelaide, provided that the necessary particulars should be " sho^\^l,' in the books of
the Treasury of the Commonwealth, in respect of each State ;" and in the simpler
language of the section as it stands the same direction is clearly implied.

The actual moneys are of course to be paid into the Consolidated Revenue Fund of
the Commonwealth (sec. 81). The process of crediting and debiting prescribed by this
section is a mere matter of book-keeping entries, upon which the appropriations and
payments to the State are ultimately to be based.

To EACH State. — One thing to be noticed about this section is that it does not
appear to contemplate the existence of anj' federal territory not forming part of a State,
but which may form part of the Commonwealth ; or, at least, that it does not appear to
deal with any revenue or expenditure except such as is collected or incurred in a State.
In subs. i. and subs. ii. (a) the word "therein"' seems clearly to exclude any revenue
collected, or expenditure incurred, elsewhere than in a State. In sub-s. ii. (h), where
" the other expenditure of the Commonwealth" is mentioned without limitation, it is
not clear whether the proportion which each State has to bear is the proportion of the
number of its people to the number of the people of the Commonicealth, or the propor-
tion of the number of its people to the number of the people of ail the States, exclusive
of any federal territories.

It therefore becomes a question how far the section applies to revenue collected and
expenditure incurred -(1) in the federal territor}' selected for the seat of Government ;
(2) in any other territory which may be acquired by the Commonwealth. As regards
the latter territories, the question is of no immediate interest, and could probably be
arranged for in the terms and conditions of admission of such territories. But with
regard to the seat of government, the question will arise as soon as the territory is
acquired by the Commonwealth.

It is submitted that revenue collected, or expenditure incurred, in the federal
territory is not collected or incurred in a State, although as a matter of location it is
provided in sec. 125 that the seat of government, or the territorj' — it is not clear which
— shall be " in" the State of New South Wales. The question is not of great practical
importance, because the only substantial "revenue" collected in the federal territory
at first will be from the post and telegraph department, and the bulk, if not the whole,
of the federal expenditure in the territory will be included in the " other expenditure " of
the Commonwealth which is to be borne in proportion to population. (See g 379, infra.)
53

834 COMMENTARIES ON THE CONSTITUTION. [Sec. 89.

§ 377. " The Revenues Collected Therein by the
Commonwealth.''

Revenues. — These words extend to all revenues which the Commonwealth collect*
in the States ; not only those arising from customs and excise, but also the receipts from
any other kind of taxation, from the revenue-producing services, from fees, licences,
penalties, and so forth. It seems clear that the gross revenues are meant — the expenses
of collection being apportioned under sub-s. ii.

Collected in. —During this period, the place of actual collection determines the
State to which the revenue is to be credited. (See Note, § 375, supra.)

§ 378. " Incurred Solely for the Maintenance or
Continuance as at the Time of Transfer."

To explain the purport of these words, some reference to the history of the section
is necessary. The Bill of 1891 provided that all expenditure should be debited in
proportion to population. The Adelaide Bill of 1897 distinguished between (1) expendi-
ture incurred " in the performance of the services and the exercise of the powers
transferred" from each State to the Commonwealth — which was to be charged against the
State from which the department in question had been transferred— and (2) expenditure
incurred " in the exercise of the original powers" given to the Commonwealth — which
was to be charged, as before, according to population. (See Historical Note.)

The Finance Committee at Melbourne thought that the distinction required some
definition ; and to make it clear that expenditure in exercise of " original powers "
included (1) expenditure in connection with the new central administrative staffs of the
transferred departments, and (2) any extension of the transferred services which might
be undertaken, the definition (cited in the Historical Note) was added. In bringing up
the report of the Finance Committee, Mr. Reid explained this provision in the following
words (Conv. Deb., Melb., p. 775) : —

" The new clause does not differ in principle from the clause, which we propose
should be omitted, but it re-arranges it to a certain extent, and clears up a difficulty
which might arise in administration after the C ommonwealth was established. Whilst
it would be perfectly clear that the actual expenditure in the services transferred, on
the basis existing at the time of the transfer, would be charged in a certain way, there
would be some doubt left as to how new works — for instance, buildings or new develop-
ments made by the Commonwealth— should be charged. We came to the conclusion,
and we did not think it a matter of very great consequence so far as administration is
concerned, that, as to such new developments under the Commonwealth, thej' should be
taken to follow the principle under which the expenditure in the exercise of the original
powers of the Commonwealth is dealt with. For instance, supposing the Commonwealth
built some permanent structure— a post office, a telegraph office, or perhaps some
important fortification of a permanent character— it manifestly would not be fair to
charge such works to the particular locality, especially as the system of distributing
expenditure will, at the end of five years, give way to the ordinary per capita distribution.
W^e have removed that difficulty, which would have arisen if the matter had not been
dealt with."

The words used seem fairly to carry out this intention, and whilst it is difficult to
give any more exact definition of the items of expenditure, in connection with the
transferred departments, which may properly under this provision be charged /jer capita.,
it is probable that in practical administration no serious difficulty will be raised. The
Executive Government, in the preparation of its accounts, will be charged with the
duty of interpreting the true scope of the provision, and it would seem that this— like
other matters arising in connection with the book-keeping provisions — is a political
matter, in which the political departments of the government must exercise an un-
hampered discretion.

§§379-380.] FINANCE AND TRADE. 835

§ 379. " The Proportion of the State, According to the
Number of its People."

This proportion (see Notes, § 376, mipra) is not very elearlj' defined. It is
submitted, however (1) that the people of New South Wales will not include the
residents in the federal territory (sees. 52— i. and 125) ; (2) that the second term of the
proportion is the population of the whole Commonwealth, inclusive of the residents in
federal territory. This means that the debit against each State will be in the propor-
tion which its people bears to the whole population of the Commonwealth, and that no
provision is made by the section for the debiting of the small share of the expenditure
corresponding to the population of the federal territory — just as no provision is made for
debiting the expenditure under sub-sec. 2 (a) incurred in the federal territory, or for
crediting the revenue collected in the federal territory. The Federal Parliament will,
however, under its exclusive power of legislation for the government of the territory
(sec. 52— i. and sec. 122) have power to credit and debit these amounts to the territory,
just as the Constitution does in respect of the States.

In reckoning the number of the people of a State or of the Commonwealth, aboriginal
natives are not to be counted. (Sec. 127.)

§ 380. "The Commonwealth shall Pay to Each State
Month by Month.'

These words seem to amount to a special appropriation. (See Note, § 350, stipia.)
There does not seem to be any special difficulty about the adjustment of these
monthly balances, so far as compliance with the provisions of this section is concerned.
There may, however, be a difficulty in ascertaining, before the several accoimts for the
financial year are complete, what expenditure for federal purposes the government is
authorized in incurriug in view of sec. 87. From the balance payable to any State vmder
this section the Commonwealth may deduct and retain the amount of any interest
payable on the debts of the State taken over by the Commonwealth. (See sec. 105.)

Exclusive power over customs, excise, and bounties.

90. On the imposition of uniform duties of customs the
power of the Parliament to impose duties of customs and of
excise, and to grant bounties on the production or export of
goods, shall become exclusive^^

On the imposition of uniform duties of customs all laws
of the several States imposing duties of customs or ot excise,
or offering bounties on the production or export of goods,
shall cease to have effect^^^, but any grant of or agreement
for any such bounty^^ lawfully njade by or under the authority
of the Government of any State shall be taken to be good^
if made before the thirtieth day of June, one thousand eight
hundred and ninetv-eiofht, and not otherwise.

Canada. -The customs and excise laws of each Province shall, subject to the provisions of

this Act, continue in force until altered by the Parliament of Canada. — B.N. A. Act, 1867,

sec. 122.
U.NiTED States. — No State shall, without the consent of the Congress, lay any imposts or duties

on imports or exports, except what may be absolutely necessary for executing its inspection

laws. — Const., Art. I., sec. 10, sub-sec. 2.

836

COMMENTARIES ON THE CONSTITUTION. [Sec. 90.

Historical Note — At the Sydney Convention, 1891, the clause as framed and
passed was substantially to the same effect, except that the exclusive power over excise
was limited to excise "upon goods for the time being the subject of customs duties ;"
and also that the particular provision as to " grants of or agreements for bounties " was
not there. An amendment by Colonel Smith, to postpone intercolonial free-trade until
"twelve months after" the imposition of uniform duties (with a view to prevent "loading
up" (see Note, § 390, infra) was negatived. An amendment by Mr. Dibbs, to provide
that the Victorian tariff should be the tariff of the Commonwealth until the Parliament
should otherwise provide, was negatived. (Conv. Deb., Syd., 1891, pp. 789-801.)

Adelaide Session, 1897. — The 1891 draft was followed almost verbatim. On Sir
George Turner's motion, the words " upon goods the subject of customs duties " were
omitted.

Upon the clause dealing with the control of customs, &c., there was much debate
on the subject of bounties. Sir George Turner wished to protect existing arrangements
and existing contracts— and also future arrangements which might be made before the
Bill became law. He also questioned the necessity of prohibiting State bounties on
exports. Other members objected to /w^ttre arrangements being protected, at least unless
a definite near date was fixed. Everyone agreed that existing contracts ought to be
protected; but Mr. McMillan, Mr. 8ymon, Mr. Reid, Mr. Barton, and others protested
against any further exceptions to intercolonial free-trade. Mr. Deakinand Mr. Cockburn
argued that bounties - especially on exports— did not necessarily interfere with internal
free-trade, and ought to be allowed to the States subject to the constitutional restriction
that trade shall be " absolutely free." Mr. Trenwith suggested that State bounties
should be allowed with the consent of the Federal Parliament. It seemed to be the
general opinion that aids to gold-mining ought not to be prevented, though some members
suggested that the clause was wide enough to cover them ; and Mr. Barton suggested
adding the words, "wares and merchandise " after " goods," to narrow the meaning.
Amendments were proposed to protect contracts "for the discovery of gold or minerals,"
and also contracts entered into before 31st March, 1897 (the date of this debate being
19th April, 1897). The legal members thought that the clause in its then form would
not invalidate contracts made before the commencement of the Act ; and Mr. Isaacs
proposed an amendment to place this beyond doubt. Mr. Grant and Dr. Cockburn
submitted amendments to preserve bounties which did not interfere with freedom of
trade. Finally all amendments were withdrawn and the clause passed provisionally.
(See Hist. Note to sec. 91. Conv. Deb., Adel., pp. 835-66.)

Melbourne Session, 1898. — An amendment of the Legislative Assembly of Victoria
was discussed, to omit mention of bounties. Sir Geo. Turner thought that the States
ought to have power to grant boimties which were not unfederal — which he afterwards
defined as "bounties for the promotion of agricultural, horticultural, viticultural, or
dairying interests" — subject to such bounties being annulled at any time by the Federal
Parliament. Mr. O'Connor objected that any State bounty interfered with equality of
intercourse. Dr. Cockburn would limit the provision to bounties on exports, which lie
thought could not affect any other State ; but Mr. McMillan replied that a bounty on
export was practically an import duty. Mr. Deakin suggested a veto by the Federal
Executive. Mr. Reid objected to all State bounties, saving existing obligations. Mr.
Isaacs wanted State freedom in primary production, subject to the paramount rights of
the Federal I'arliament. Mr. Trenwith argued that State money could develop industries
in many ways without injuring the federal principle. Mr. Higgins suggested the assent
of the Inter-State Commission, as a compromise — Parliamentary assent involving too
much delay. The Victorian amendment was negatived. The proposal of the Fijiance
Committee, to except " any grant of or agreement for any such bounty made by or under
the authority of the Government of any State before the 30th day of June, 1898," was
then carried. (Conv. Deb., Melb., pp. 909-64.)

§381.] FINANCE AND TRADE. 837

§ 381. " Customs and Excise . . . shall become

Exclusive.

The first paragraph of this section pro\ides chat on the imposition of uniform duties
of customs, the power of the Parliament to impose duties of customs and of excise, and
to grant bounties on the production or export of goods, shall become exclusive. Three
questions have to be considered in connection with this grant of power — (1) what are
duties of customs ? (2) what are duties of excise ? (3) what is the meaning of exclusive ?

DxrriES of Customs. — Customs duties are duties or tolls imposed by law on the
importation or exportation of commodities. Such duties have been levied by commercial
communities from the earliest periods of recorded history. The Athenians imposed a
tax of 2(1 per cent, on corn and other merchandise imported from abroad. In republican
Rome, duties paid on exports and imports constituted an important part of the public
revenue. Duties of customs were levied in England long before the conquest. They
derived their name from having been customarily charged on certain articles, when
carried across the principal bridges and ferries within the kingdom, and on other
productions when exported or imported. The articles which were first and principally
the subjects of these customs or duties were wool, skin, and leather. Duties of tonnage
were duties paid on wine by the tun, and duties of poundage were the ad valorem duties
of so much per pound on other commodities. These duties, when granted to the Crown,
were called subsidies.

Duties of Excise. — The definition of the term excise is not so clear and well
established as that of customs. Excise duties were first introduced into England in the
year 1643, as part of a new scheme of revenue and taxation devised by Pym and
approved by the Long Parliament. These duties consisted of charges on beer, ale, cider,
clierry wine and tobacco, to which list were afterwartls £idded paper, soap, candles,
malt, hops, and sweets. The only excise duties now surviving in England, similar to
those of the original list, are duties on beer, spirits, chicorj', imitations and substitutes
of chicory and coffee, and chicory mixture. The basic principle of excise duties was
that they were taxes on the production and manufacture of articles which could not be
taxed through the customs house, and revenue derived from that source is called excise
revenue proper. In the course of time licenses were required from the makers of and
the dealers in excisable commodities, and these license fees acquired the name of " duties
of excise." The next step was to require persons to take out licenses, who neither
produced nor manufactured nor disposed ot excisable commodities, and these license fees
also became known as " duties of excise." Thus the list of excise licenses, which at
first included only brewers, beer-dealers, beer-retailers, distillers, spirit-dealers, spirit-
retailers, tobacco and snuff manufacturers and dealers, wine-dealers, and wine-retailers,
was expanded by English usage until it embraced auctioneers, OAvners of armorial
bearings, owners of dogs, owners of game, gun-dealers, persons entitled to carry gtms,
hawkers, house agents, patent medicine sellers, owners of carriages, pawnbrokers, plate-
dealers, refiners of gold and silver, refreshment house keepers, and carriers.

Such was the primary meaning of " excise," and such the secondary and enlarged
use of the term. The fundamental conception of the term is that of a tax on articles
protlueed or manufactured in a country. In the taxation of such articles of luxury, as
spirits, beer, tobacco, and cigars, it has been the practice to place a certain duty on the
importation of these articles and a corresponding or reduced duty on similar articles
produced or manufactured in the countrj- ; and this is the sense in which excise duties
have been understood in the Australian colonies, and in which the expression was
intended to be usefl in the Constitution of the Commonwealth. It was never intended
to take from the States those miscellaneous sources of revenue, improperly designated as
"excise licenses" in British legislation. It was considered essential that the two
correlative powers over customs and excise, properly so called, should run together and
be exclusively vested in the Federal Parliament. It was not contemplated that the

838 COMMENTARIES ON THE CONSTITUTION. [See. 90.

Federal Parliament, in acquiring the necessary power to provide uniformity of coni-
-mercial laws, should absorb the absolute and exclusive control of so wide an area of
inland taxation as would be covered by licenses similar to those enumerated in the above
list, such as auctioneers and pawnbrokers.

Meaning of " Exci^usive. " — The term " exclusive " does not mean unlimited It
means that the power to impose customs and excise is, subject to the Constitution,
wholl}^ vested in the Federal Parliament as against the States. It means that the power,
being granted to the Federal Parliament, is -from the moment of the imposition of
uniform duties — taken once and for all from the States ; and that the States can
thenceforth not legislate for that purpose in any way whatever, even in the absence of
Federal legislation. If, for instance, the Federal Parliament imposed uniform customs
duties without making any provision for excise, the States would still be powerless to
impose excise duties.

This gift of exclusive power is supplemented by an express provision that all laws
of the States imposing duties of customs or excise, or offering bounties, shall, from the
moment when the exclusiveness attaches, "cease to have effect ; " so that the existing
laws of the States, as well as their power to make future laws, will be absolutely
superseded. (For further notes on the meaning of "exclusive power," see § 234, supra.)

§ 382. " Shall Cease to have Effect."

These words operate as a repeal of all the customs and excise duty Acts of the
States, and all Acts of the States authorizing bounties, from the time that the federal
customs duties come into force. The imposition of the federal tariff is thus made
contemporaneous with the sweeping away of the provincial tariffs ; the border custom
houses cease to exist, so far as the collection of duties is concerned ; so that the
establishment of uniformity for the whole Commonwealth is accompanied by the
abolition of fiscal barriers between the States. This is the stage at which the
Federation of Australia, as one commercial people, becomes complete. The Common-
wealth is indeed established on the date fixed by the Queen's proclamation ; but until
the federal tariff is passed by the Federal Parliament, the Constitution is not in full
working order ; two of its most fundamental provisions — sections 90 and 92 — being
inoperative. With the imposition of a uniform tariff, the principle of inter-state trade
and full commercial unity comes into play, and the last step is taken in the
accomplishment of Federation

It is clear that this annulment of State laws is only co-extensive with the exclusive
power of the Federal Parliament, and therefore that it does not affect laws granting
bounties on mining for metals, or granting any bounties with the consent of both
Houses of the Federal Parliament.

§ 383. " Any Grant of or Agreement for any such Bounty."

The object of this provision is to protect existing obligations. Though, on the
imposition of uniform duties, State bounties, generally speaking, are to end immediately,
yet existing contracts, and grants already made, are to liold good. This question was
first discussed at the Adelaide session of the Convention, when Sir Geo. Turner
expressed some anxiety as to "contracts already in existence, or wliich may be in
existence before this Act comes into force, or before the imiform duties of customs come
into operation." (Conv. Deb., Adel., p. 83S.) The provision as it now stands was
framed by the Finance Committee of the Convention at Melbourne. (See Historical
Note.)

Although the general aim of the "bounty" clauses of the Constitution is clear
enough, their exact construction is a matter of some difficulty. To discuss the meanimj
of this provision as to "grants of and agreements for" bounties, it will be necessary
to recapitulate the provisions of the Constitution which refei- to bounties.

§§ 383-384.]

FINANCE AND TRADE. 839

(1.) At the establishment of the Commonwealth, the Federal Parliament has power
to make laws with respect to '* bounties on the production or export of goods, but so
that such bounties shall be uniform throughout the Commonwealth." (Sec. 51— iii.)
At the same moment, however, the control of the payment of bounties passes to the
Executive (]k)vemment of the Commonwealth. (Sec. 86.)

(2.) On the imposition of uniform duties, the power of the Parliament to grant
bounties on the production or export of goods becomes exclusive. Thereupon all laws
of the States offering bounties on the production or export of goods shall cease to have
effect ; but any grant of or agreement for any such bounty lawfully made by or under
the authority of the Government of any State shall be taken to be good if made before
30th June, 1898, and not otherwise. (Sec. 90.)

(3.) Xothing in this Constitution prohibits a State from granting bounties on mining
for metals, or from granting any bounty with the consent of both Houses of the Federal
Parliament. (Sec. 91.)

Before the imposition of uniform duties of customs therefore, the power of the
Federal Parliament to grant federal bounties is accompanied by a power of the State
Parliaments to grant State bounties ; but though there is thus, in a sense, a concurrent
legislative power, the executive control of the payment of bounties passes to the
Federal Government. (See Note, § 367, supra.) On the imposition of uniform duties,
the power of the State Parliaments to grant bounties is excluded, and State laws offer-
ing bounties are annulled ; but certain "grants of or agreements for" bounties are to
be taken to be good. And, lastly, an exception is made, by sec. 91, to both the exclu-
siveness of the federal power and the annulment of State laws. What, then, are " grants
of and agreements for bounties," and how does the Constitution affect them ?

AoRBEMEXT. — The phrase "agreement for any such bounty lawfully made by or
under the authority of the Government of any State " clearl}' means a binding contract
actually entered into between the Government and a producer or exporter. Xo mere
political promise, or armouncement of policy on the one hand, or public expectation on
the other hand, can constitute an agreement ; the word can only mean a definite and
binding legal agreement. The word "lawfully" seems only inserted to prevent
the section being construed to validate any agreements which, apart altogether from
this section, might be invalid.

Grant. — The words "grant of" are not so easy to construe. They must,
apparently — according to strict grammar -be read as " any gi-ant of any such bounty
lawfully made by or under the authority of the Government of any State." The grant
referred to cannot be the actual payment by the Executive Government of the State to
the producer ; because that would mean that such payments already made between 30th
June, 1898, and the imposition of uniform duties of customs would, upon the latter
e%-ent, become unlawfully made. It apparently means the appropriation of money to
the purpose of the bounty— the actual setting aside of money, under Parliamentary
authority, to that purpose.

§ 384. "Shall be Taken to be Good."

Effect of the Reservation". — What then is the effect of a gi-ant or agreement being
" taken to be good ? " A survey of all the " bounty " provisions leads to two possible
interpretations.

(1.) One view is that these words must be read subject to the provision that all
State laws offering bounties shall "cease to have effect." In that view, the appro-
priation by the Parliament of a State is no longer an authorization for the expenditure
of any balance remaining unexpended at the imposition of uniform duties. The grant or
agreement is good, but the State law under which it can be effectuated has ceased to
have effect This difficulty can only be met by sec. 86, which gives the Federal
Executive "the control of the payment of bounties," and it is argued that by virtue of

840 COMMENTARIES ON THE CONSTITUTION. [Sec. 91.

this control the Federal Government can pay the amount of the State bounties itself,
and debit the so amount so paid to the account of the State, under sec. 89, sub-sec.
ii. (a).

(2.) The other view is that the words " but any grant or agreement," &c. , are an
exception to the words immediately preceding — "shall cease to have effect." In this
view, though State laws offering bounties are declared, generally speaking, to cease to
have effect, yet the subsequent saving of certain grants and agreements means that
the State laws by which those grants or agreements are made or effectuated are excepted
from the rule of annulment. The grants or agreements which are " taken to be
good " are good against the State which made them, and must be fulfilled by that
State. The "control" of the Federal Executive is in that case merely a right of
supervision, to see that the provisions of the Constitution are complied with.

Restrictivk Eftect. — This section not only saves grants or agreements made
before 30th June, 1898, but invalidates (by the words "not otherwise") every grant or
agreement made on or after that date. Technically speaking, therefore, the provision
is retrospective, because it invalidates not only contracts made after the commencement
of the Act, but contracts made at any time after a date previous to the passing of the
Act. Looking, however, at the time at which the clause was actually framed, and the
fact that it was publicly framed by the representatives of the parties interested, all
objection to it on the ground of its retrospective character vanishes.

This particular provision has been assailed as affording a loop-hole for permitting
the evasion of the provision for the termination of bounties. Looked at closely, how-
ever, it is restrictive rather than permissive. In the absence of any such provision, it
is clear that the repeal of laws offering bounties would not operate retrospectively to
invalidate agreements made under such laws. (See Maxwell, Interpr. of Statutes,
p. 192 ; cited Con v. Deb., Adel., p. 848.)

As regards grants made after 30th June, 1898, they are only invalidated to the
extent of moneys remaining unexpended at the imposition of the uniform tariff, and
similarlj^ agreements are only invalidated to the extent of bounties promised but not
paid at that date. "Laws offering bounties" remain in force until the imposition of
the uniform tariff; and there is nothing in the Constitution which interferes with
payments actually made before that date.

Exceptions as to bounties 3*^''.

91. Nothing in this Constitution prohibits a State from
granting^^^ any aid to or bounty on mining for gold, silver, or
other metals^^^ nor from granting, with the consent of both
Houses of the Parliament of the Commonwealth expressed
by resolution^^, any aid to or bounty on the production or
export of goods.

Historical Note. — For the earlier discussions of the bounty question, see Historical
Note, sec. 90. At the Adelaide Session, 1897, on recommittal, Mr. Higgins added (to
what is now sec. 90) a new paragraph : — " This section shall not apply to bounties or
aids to mining for gold, silver, or other metals." (Con v. Deb., Adel., p. 1203.)

At the Melbourne session Sir Geo. Turner moved to omit (from Mr. Higgins'
paragraph) all words after " mining " — so as to include coal and other non-metallic
minerals. He argued that aids to the development of natural resources could not
interfere with free trade, though bounties to manufacturers might ; but Mr. O'Connor,
Mr. Higgins, and Mr. McMillan differed from him, on the ground that coal is as much

e§ 385-386.] FINANCE AND TRADE. 841

an article of inter-state commerce as any other product. The amendment was negatived.
Sir Geo. Turner then proposed an amendment to allow " any bounty or aid granted by
any State with the consent of the Governor-General in Council or the Parliament of the
Commonwealth." The words "Governor-General in Council" were strongl}- objected
to on the ground that they excluded the corporate influence of the States — the Ministry
being responsible only to the House of Representatives. Sir Geo. Turner and Mr.
Isaacs, however, insisted that without these words the provision would be useless, a.s the
assent of Parliament would involve too much delay. Mr. Dobson moved to omit the
words " Governor-General in Council," but this was negatived on di\-ision by 26 to 21 —
several members voting to retain the words and afterwards voting against the whole
pro\-ision, which was then negatived by 27 to 19. {Con v. Deb., Melb., pp 96-5-90.)

In the second recommittal, Sir Greo. Turner moved his amendment again. Sir John
Downer, by way of compromise, proposed to omit both Governor- General and Parlia-
ment, and substitute the assent of " both Houses of Parliament expressed by resolution."
Sir Geo. Turner and Mr. Isaacs thought this no better than Act of Parliament, and
secured its rejection by 22 votes to 19. Thereupon an amendment was moved to add a
condition that the bounty should not derogate from inter-state free-trade. Sir Geo.
Turner complained that this made the whole clause useless, as any bounty might be set
aside by the High Court, and therefore no one would venture to invest capital ; but it
was canied by 29 to 12. Sir Geo. Turner then asked the Convention to assist him out
of his difficulty by retracing their steps, and allowing him to accept Sir John Downer's
amendment ; and this was done. (Conv. Deb., Melb., pp. 2343-65.)

After the fourth report the clause (which up to then had formed part of preceding
clause) was redrafted as a separate clause.

385. '* Exceptions as to Bounties.'

The Bocn'ty Question'. — The question of State bounties — as clearly appears from
the discussions in the Convention — bears a close analogy to the question of discriminating
railway rates. Both bounties and discriminating rates may have a lawful or an unlawful
purpose. They may be used purely for the development of the resources of a State, or
they may be used te create unfair and unfederal competition with the trade of another
State. The Convention was therefore not satisfied with the absolute prohibition of
bounties, any more than with the absolute prohibition of preferences ; they wished to
protect purely developmental bounties, while forbidding unfederal bounties. The
difficulty was, however, to frame a definition. Bounties on mining for metals were,
without much dispute, accepted as developmental ; but as regards other bounties, no
definition was possible, and the matter was left to the decision of the Federal Parlia-
ment in much the same way as the question of unfederal rates is left to the Inter-State
Commission.

.^ 386. "Nothing in this Constitution Prohibits a State

from Granting."

These words qualify the provisions of sec. 90, which otherwise would prohibit a State
from granting any aid or bounty which came within the description " bounty on the
production or export of goods." If the State is not prohibited from granting certain
Ixjunties, it must follow that it is not prohibited from legislating for that purpose, and
therefore that to that extent an exception is made to the exclusive nature of the power
of the Federal Parliament.

It is submitted that the wide words, " nothing in this Constitution prohibits," do
not exempt such grants of bounties from the provisions of the Constitution generally,
but only from those prohibitions which relate specifically to bounties. The declaration
that the Constitution does not prohibit a State from granting certain bounties does not
mean that such bounties may not be unlawful if they do not comply with the

842 COiNtMENTARIES ON THE CONSTITUTION. [Sec. 91.

requirements of the Constitution, or of federal statutes, in other respects. These
particular bounties are excluded, qua bounties, from all the constitutional prohibitions
against granting bounties ; but they are not exempted from the whole ambit of the
Constitution.

Suggestions were made throughout the debate that State bounties might be
unconstitutional, without express provision to that effect, on the ground that thej^
derogated from freedom of trade among the States. (See, for instance, Conv. Ueb. ,
Adel.. pp. 840 seqq. ; Conv. Deb., Melb., pp. 910 seqq. ) It is extremely doubtful,
however, whether a local encouragement to industry could ever be held to be a violation
of the constitutional provision for freedom of trade. It might, indeed, and often would,
be a derogation from equality of trade, and therefore be unfederal ; but it is hard to say
that encouragement by a State of its own industries, by means of bounties on production
or export, can interfere with the freedom of inter-state or foreign trade. (See notes to
sec. 92.)

§ 387. " Any Aid to or Bounty on Mining for . . .

Metals."

It was not contended at the Convention that aids to the development of mineral
resources — at least as regards metals — would be likely to interfere with equality of
trade. The sums so spent at present are chiefly in the way of rewards for the discovery
of gold-fields. It was suggested at the Adelaide Convention that these payments might
be held to be bounties on the production of goods. (Conv. Deb., Adel., pp. 843, 850.)
The chief reason for inserting this provision seems to have been to remove doubts on
this point ; though of course the words have, and were intended to have, a wider scope.
(See Conv. Deb., Melb., p. 966.)

As regards bonuses for mining discoveries, it is submitted that they could not, in
any case, be held to be " bounties on tlie production of goods." The bounty contem-
plated bj^ the section is a sum paid to the producer in respect of the goods produced :
and even admitting that mining is the " production of goods" within the meaning of
the Constitiation, it is clear that a reward paid for discovery is essentially different from
a reward paid for production. It is submitted, therefore, that rewards for discovery
do not come within the meaning of a bounty, and do not need the protection of this
section ; but may be given in respect of any industry.

The reasons for limiting the exemption in favour of mining bounties to " gold, sih'er,
and other metals " is stated by Mr. O'Connor (Conv. Deb., Melb., p. 965).

" The clause as it stands was the result of a long discussion in Adelaide. It was
held that bounties granted for the production of metals stood in a different position
altogether from bounties granted on the productio?) of goods which might be the objects
of commerce between different States. It is because a bounty on the production of metals

would have no effect on the price that this clause was agreed to The

reason why you are not allowed to give a bountj' on butter, or any other article of that
kind produced in a State, is because the bounty would interfere with the price and the sale
in commerce between the States, and exactly the same consideration would apply to a
mineral like coal, which is the subject of sale."

The distinction thus made, between bounties which affect and which do not affect
the price of a commodity the subject of inter-state commerce, is a sound one ; but the
line drawn in the section, between metals and non-metals, is hardly so satisfactory. As
regards gold and silver on the one hand, and coal on the other, it applies well enough ;
but it does not seem clear why the price of such a metal as iron — which, if produced in
any State, would be distinctly an article of inter-state commerce — might not be affected
by bounties almost as much as the price of coal.

§388.]

FINANCE AND TRADE. 843

§ 388. " With the Consent of Both Houses . . .
Expressed by Resolution."

This provision amounts to an absolute power given to the two Houses of the Federal
Parliament to dispense, to any extent which they may desire, with the prohibition
imposed by the preceding section. The intention is that whilst State bounties in general
are prohibited, there should be full opportunity given for the allowance of bounties
which are purely developmental in aim and not unfederal in effect. It being impossible
to frame any definition which would secure this desirable object, the matter was
entrusted absolutely to the discretion of the Federal Houses of Parliament.

As to the nature of the consent, it is conceived that it may be absolute or conditional,
particular or general, for a fixed or an indefinite period ; and that the resolution may be
either antecedent or subsequent to the grant by the State. Perhaps the most important
questions likely to arise are (1) whether the consent once given is revocable, and (2) if
so, what will constitute revocation.

(I.) That any consent given under this section is revocable there can hardly be any
doubt. The consent of Parliament in such a case is not the consent of a contracting
party, but a license given by a governing body. If instead of the consent of " both
Houses of the Parliament expressed by resolution," the consent of the Parliament itself
had been required, the consent would have been by legislative Act, revocable at any
moment at the will of the Parliament. A Parliament cannot bind succeeding Parlia-
ments, and cannot even bind itself ; and it is impossible to suppose that it was intended
to empower the two Houses by joint resolution to do what the Queen and both Houses
together would be unable to do. It is submitttsd, therefore, that the consent of both
Houses must be a continuing consent, revocable at any moment. Consideration of the
object of the general prohibition against bounties, and of this exception, le-ads to the
same conclusion ; because it is obvious that a bounty which does uot, when granted,
interfere with equality of trade may afterwards, under altered conditions of trade,
involve serious inequality.

(2.) Then comes the question — what constitutes revocation? If the con.sent is
revocable, it can clearly be revoked in the way in which it was made — by resolution of
both Houses. But would the rescission of the resolution by either House, without
the other, constitute revocation ? The answer seems to depend on the further question
whether the "consent of both Houses" is to be regarded as a joint or a several consent
-as one consent or two. If the consent of each House were regarded independently, it
would seem that the consent of both Houses could not be said to continue when the
consent of one was withdrawn ; whereas if the consent of both Houses were regarded as
one common consent, the concurrence of both would be needed to w ithdraw that consent.
Looking at the language of the section (which speaks of '" both Houses," not of " each
House ; " compare sec. 128), and also at the character of the Parliament as a legislative
body, and the semi-legislative character of the consent required, it seems clear that a
joint revocation would be necessary. If the intention of the Convention be considered,
this view is borne out. The proposal to require the consent of "both Houses" was a
compromise to meet the Wews of those who feared that the consent " of the Parliament"
would involve undue delay. The joint resolutions seem to have been regarded as a
slightly more expeditious substitute for an Act of Parliament, and not to differ in effect.
(Conv. Deb., Melb., p. 2352.)

It was indeed suggested {id. pp. 2357-8) that a consent once given would become
" part and parcel of the Constitution," and would be interminable unless so expressed by
the resolutions themselves ; but it is submitted that this view — which was uot based on
the distinction between resolutions and Act of Parliament — cannot be supported.

844 COMMENTARIES ON THE CONSTITUTION. [See. 92.

Trade within the Commonwealth to be free.

92. On the imposition of uniform duties of customs,
trade, commerce, and intercourse among the States, whether
by means of internal carriage or ocean navigation, shall be
absolutely free^^^.

But notwithstanding anything in this Constitution,
goods imported before the imposition of uniform duties of
customs^^ into any State, or into any Colony which, whilst
the goods remain therein, becomes a State, shall, on thence
passing into another State^**^ within two years after the
imposition of such duties, be liable to any duty chargeable
on the importation of such goods into the Commonwealth,
less any duty paid in respect of the goods on their importa-
tion.

Canada — All articles of the growth, produce, or manufacture of any one of the Provinces
shall, from and after the Union, be admitted free into each of the other Provinces.--
B.N.A. Act, 1867, sec. 121.

Where customs duties are, at the Union, leviable on any goods, wares, or merchandises in
any two Provinces, those goods, wares, and merchandises may, from and after the Union,
be imported from one of those Provinces into the other of them, on proof of payment of
the customs dutj' leviable thereon in the Province of exportation, and on payment of such
further amount (if any) of customs duty as is leviable thereon in the Province of importa-
tion.—iri. sec. 123.

Historical Note.— At the Sydney Convention, 1891, the first paragraph of the
clause was drafted and passed substantially in its present form— except that it referred
to trade "throughout the Commonwealth," not merely "among the States." There
was also a clause enabling the Parliament to annul any law having the effect of derogating
from inter-state free trade.

The difficulty as to the possible evasion of the federal tariff by "loading up" just
before its imposition, in a colony where goods were duty-free, was raised by Colonel
Smith, who proposed to retain the intercolonial duties for twelve months after the
imposition of the Federal Tariff. The amendment was, however, withdrawn. (Conv.
Deb., 1891, pp. 790-802.)

At the Adelaide session, 1897, the 1891 draft was followed almost verbatim. In
place of the power to annul laws made in derogation of free-trade, there was appended
to the preference clause a provision that such laws should be wholly void. Sir (leorge
Turner feared that "absolutely free" might have a wider interpretation than was
meant ; and Mr. Isaacs suggested that the clause was unnecessary, and dangerously wide.
All that was needed was a prohibition of inter-state duties— which was elsewhere
provided for. He also suggested " among the States " as better than the wide phrase
" throughout the Commonwealth." (Conv. Deb., Adel., pp. 875-7.)

For an amendment by Mr. Deakin, to enable a State to prohibit importation of
articles the sale of which within the State is prohibited, see Hist. Note to sec. 113.

At the Melbourne session, a suggestion of the Legislative Assembly of Western
Australia to omit "throughout the Commonwealth," and substitute "between the
States," was agreed to.

The second paragraph was added in accordance with the Report of the Finance
Committee. Mr. McMillan feared it would be unworkable ; but Mr. Holder replied
that it would probably not need to be enforced, as the mere fact of its existence would
prevent the mischief. The provision was amended by inserting "colony or" before

^389.]

FINANCE AND TRADE. 845

"State," so as lo make it applicable to goods imported before the establishment of the
Commonwealth. Sir Philip Fysh proposed words to make it clear that these duties are
to be credited to the State of destination ; but the amendment was deemed unnecessary,
and withdrawn. Sir George Tiimer suggested that where the duty paid in the colony
was higher than the Commonwealth duty, the State should give a drawback ; but the
matter was left over for consideration. An amendment by Mr. Henry, to limit the
clause to one year, was negatived by 32 to 9. The pro\'ision that laws derogating from
free-trade should be void disappeared from the Bill, that result being sufficiently securetl
by this clause. (Conv. Deb., Melb., pp. 1014-36.) Drafting amendments were made
before the first report and after the fourth report.

§ 389. " Trade Commerce and Intercourse . . . shall
be Absolutely Free."

Freedom of Intek-State Tradk. — This section is intended to provide for the
perfect freedom of trade and commerce among the States, from the moment of the
imposition of uniform duties In order to secure that object the strongest possible
words have been used. Nothing has been left to implication. In this respect the
Constitution of the Commonwealth is more explicit than the Constitution of the United
States, which merely forbids the States to lay any duties on imports or exports without
the consent of Congress. (Art I. sec. x. subs. 2.) But it was held in Brown v.
Houston, 114 U.S. 622, and WoodruflF v. Parham, 8 Wall. 123, that the prohibition did
not apply to goods carried from one State of the Union to another ; such goods were not
imports or exports ; imports were commodities coming from foreign countries into the
Union, and exports were those proceeding out of the Union into foreign countries. In
America, therefore, inter-state free-trade depends solely on the rule of construction that
the regulation of trade and commerce, in matters requiring uniformity of legislation, is
ej^clusively vested in Congress, and that the States are, ipso facto, deprived of the
power to impose duties on goods proceeding from one State into another. Under the
Constitution of the Commonwealth there are two express guarantees for freedom of trade
Ixjtween the States ; sec. 90, which provides that on the imposition of duties of customs
the power of the Parliament to deal with that subject becomes exclusive ; and sec. 92,
which provides that thenceforth trade, commerce, and intercourse among the States
shall be absolutely free.

This section, and all the cases cited in illustration of its meaning, must be read
subject to the special provisions of sec. 113, which enacts that " All fermented, distilled,
or otlier intoxicating liquids passing into any State or remaining therein for use, consump-
tion, sale, or storage, shall be subject to the laws of the State as if such liquids had been
produced in the State."

The Elements of Ixter-State Free-Trade. — Two questions have to be considered
in connection with sec. 92 in order to grasp its significance ; first, what is absolute
freedom of trade, commerce, and intercourse ? and secondly, during what period of time
or within what limits of space do inter- state trade and commerce operate, so as to remain
protected by the shield of Federal freedom ? In reference to the first question, absolute
freedom of trade, commerce, and intercourse may be defined as the right to introduce
goods, wares, and merchandise from one State into another, the right to sell the same,
and the right to travel unburdenetl by State restrictions, regulations, or obstructions.
Freedom of trade necessarily means the right to sell as well as the right to introduce,
and the right to travel in order to sell. The right of introduction without the right of
disposition would reduce freedom of trade to an empty name. The second question may
be conveniently discussed under the headings, il) When does exportation begin? and
{2) When is importation complete ?

Whex Exportatiox Begins. — It has been held that exportation does not begin
until the goods are committed to the custody of a carrier for transportation out of a

846 COMMENTARIES ON THE CONSTITUTIOK [Sec. 92,

State. Until then they remain subject to State laws and are taxable as a part of the
general mass of property in the State. (Coe v. Errol, 116 U.S. 517. See other cases
cited p. 519, supra.)

When Importation is Complete. — Articles of foreign or inter-state commerce
become subject to State laws and State taxation from the moment when they are divested
of their inter-state or foreign quality. This happens as soon as they pass from the
original importer into the hands of the purchasers of the original packages, or as soon as
they have been broken up for retail by the original importer. (Brown v. Maryland, 12
Wheat. 419 ; Turpin v. Burgess, 117 U.S. 504. Burgess, Political Sci. ii. p. 135.)

Doctrine of Original Package. — An original package has been defined as the
unbroken package, in the condition in which it was prepared by the exporter, received
and transported by the carrier, and brought into the importing State. (McGregor v.
Cone, 1898, 73 N. W. Rep. 1041.) Thus boxes and barrels are original packages. In
some cases it has been held that where bottles of liquor were packed in barrels and
boxes, and transported into a State, the bottles were the original packages and wer&
within the protection of the Federal commercial law, after they had been removed from
the barrels and boxes. These cases, however, have been overruled, and it is now held
that the barrels or boxes, and not the bottles, are the original packages. (Prentice and
Egan, Commerce Clause, p. 82.) It has been further held that the question, what
constitutes an original package, is partly one of good faith, and that the importer maj*
determine for himself the form and size of the package which he buj's. (Guckenheimer
V. Sellers, 81 Fed. Rep. 997.) The importer may sell his goods in the original package,
by wholesale or by retail. (SchoUenberger v. Pennsylvania, 171 U.S. 1.) An original
package becomes subject to State jurisdiction as soon as it is broken. (Brown v. Marj'land,
12 Wheat. 419; Leisy v. Hardin, 135 US. 100.) The original package is not broken
merely by the fact of lifting the lid for the examination of its contents. {Be McAllister,
51 Fed. Rep. 282.) The drawing of a bung from a barrel, in order to obtain a small
quantity of its contents for testing purposes, does not constitute a breaking of the-
package. (Wind v. Her, 93 Iowa, 316.)

Methods of Fettering Inter-State Commerce. —The principal methods resorted
to by some of the States of America, in order to avoid the rule of freedom of trade,
may be thus classified — (1) By the imposition of taxes on imported goods, after their
entry into the State, this being done in the pretended exercise by the State of the right
to tax all property within its jurisdiction. (2) By requiring persons engaged in selling
goods introduced or coming from another State to pay for licenses to sell, this being
also done in the pretended exercise of State taxing power. (3) By restricting the
actual introduction of goods from another State, on alleged sanitaiy or moral grounds,
this being done in the pretended exercise of the police power of the State.

Taxes on Inter-State Commerce. — The following are instances of taxes on
inter-state commerce, violating the law of commercial freedom : — A tax on goods
coming from other States unaccompanied by equal taxes on similar local goods, held
to be unconstitutional and void (Brown v. Houston, 114 U.S. 622) ; a tax on the
earnings of carriers conveying freight and passengers, from one State into another,
held unconstitutional (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196); a tax on
persons selling goods manufactured out of the taxing State, and no similar tax exacted
from those engaged in the sale of like goods manufactured in that State, held
unconstitutional (W^alling v. Michigan, 116 U.S. 446); a tax on cars belonging to a
carrying company which run from point to point within the taxing State to points
without the State, held unconstitutional (Pickard v. Pullman Car Co., 117 U.S. 34) ; a
tax on every ton of freight, carried by a railway in and through a State, held
unconstitutional (The State Freight Tax Case, 15 Wall. 232) ; a tax on all messages
sent by a telegraph company, se far as it applied to messages sent to or received from
points in other States, held unconstitutional (Telegraph Co. v. Texas, 105 U.S. 460) ; a
tax on all persons soliciting orders tor goods, so far as it applied to those canvassing for

§389] FINANCE AND TRADE. 847

persons outside the State, held unconstitutional (Asher v. Texas, 1'28 U S. 129) ; a tax on
all non-residents who sold liquors, held unconstitutional (Walling v. Michigan, 116 U.S.
446) ; a tax on a carrj'ing companj- for every alien passenger brought by it to the ports
of a State, held unconstitutional (People r. Compagnie Generale, 107 U.S. 59 ; Henderson
r. Mayor of Xew York, 92 U.S. 259) ; a tax on the gross receipts of common carriers, so
so far as it applied to receipts from inter-state business, held unconstitutional (Fargo v.
Michigan, 121 U.S. 230) ; a tax on all vessels touching the wharves of a State, so far as it
applied to vessels engaged in inter-state business, held unconstitutional (Inman S.S. Co.
V. Tinker, 94 U.S. 238) ; a tax on the franchise of a railroad company which had been
granted by the Federal legislature, held unconstitutional (California v. Central Pacific
R. Co., 127 U.S. 1) ; a tax on the tonnage of vessels, even though such tax was exacted
in aid of quarantine inspection, held unconstitutional ; a tax collected from auctioneers
on their sales of imported goods in their original packages, held uuconstitutional (Cook
r. Pennsylvania, 97 U.S. 566) ; a tax on bills of lading for the transportation of gold
or silver from one State to another, held unconstitutional (Almy i: California, 24 How.
169) ; a tax of 5 dollars on each vessel entering a port of a State, such tax being
supplied to support the Port Wardens, and collected, whether the vessel required their
ser\ices or not, held unconstitutional (Steamship Co. v. Port Wardens, 6 Wall. 31) ; a
tax on a non-resident railway company engaged in inter-state traffic, for the right to
maintain an office in the taxing State, in order to promote its business, held unconstitu-
tional (Norfolk and Western R. Co. v. Pennsylvania, 136 U.S. 114).

Licenses to En'gage ix Ixter-State Commerck. — The following are instances in
which State laws taxing persons engagefl in inter-state commerce have been held
to violate the rule of commercial freedom, \'iz., laws requiring pedlars selling goods
not grown or manufactured in the taxing State to hold licenses, whilst no licenses were
required of persons selling similar articles grown or manufactured in the State, held
unconstitutional (Weltou r. Missouri, 91 U.S. 275) ; requiring commercial travellers
canvassing for the sale, by sample, of goods at the time outside the State to hold licenses,
held unconstitutional (Asher v. Texas, 128 U.S. 129 : Robbins v. Shelby Taxing District,
120 U.S. 489; Stoutenburgh v. Hennick, 129 U.S. 141) ; requiring persons selling malt
liquor, the product of another State, to hold licenses, held unconstitutional (Tiernan i.
R inker, 102 U.S. 123) ; requiring persons selling goods, not the product or manufacture
of the vendors, to hold licenses, held unconstitutional (Corson r. Maryland, 120 U.S.
502) ; requiring the officers of foreign corporations engaged in inter-state commerce to
hold licenses, held unconstitutional (McCall v. California, 136 U.S. 104) ; requiring
persons engaged in inter-state occupations to hold licenses, held unconstitutional (Moran
V. New Orleans, 112 U.S. 69) ; requiring the owners of inter-state ferry boats touching
the wharves of a State to hold licenses, held unconstitutional (St. Louis i\ Wiggins Ferry
Co., 11 Wall. 423) ; requiring a telegraph company established by the federal legislature
to hold a license, held unconstitutional (Leloup v. Port of Mobile, 127 U.S. 640) ; requiring
a license to be held by an agent of a foreign express company, held unconstitutional
(Crutcher v. Kentucky, 141 U S. 47) ; requiring an agent of a company ha^^ng a railwaj'
in a distant State, and soliciting business for that i-ailway, to hold a license, held
unconstitutional (McCall r. California, 136 U.S. 104) ; requiring a license fee for the use
of a stream in prosecuting inter-state commerce, held unconstitutional (Harman v.
Chicago, 147 U.S. 396).

Police Powers EIxercised to Restrict Ixter- State Commerce. — The following
are examples of State laws, passed in the exercise of police powers, which obstruct and
restrict inter-state commerce, and which consequently violate the rule of commercial
freedom, viz., a law prohibiting the introduction into a State of cattle or goods during
certain periods of the year, ostensibly for sanitary purposes, but in reaUty for State
protective purposes, held unconstitutional (Railroad Co. v. Husen, 95 U.S. 465) ;
prohibiting the introduction into a State of certain kinds of human food, unless inspected
before its preparation, ostensibly for sanitary reasons, but in reality for State protective

848 COMMENTARIES ON THE CONSTITUTION. [Sec. 92.

purposes, held unconstitutional (Minnesota*'. Barber, 1.36 U.S. 313); prohibiting the
introduction of certain goods, such as intoxicating liquors, ostensibly to preserve the
morals of the people, held unconstitutional (Bowman v. Chicago, &c., R. Co., 125 U.S.
465 ; Leisy v. Hardin, 135 U.S. 100 ; see, however, the Wilson Act (America), and sec.
113 of this Constitution.)

Taxes by States in Exercise of Their Taxing Powers. — In the cases cited, in
which taxes imposed by States were held to be unconstitutional and void, the taxes were
for the most part of a discriminating character, in taxing the means of commerce and the
subjects of commerce coming from other States, or they were so thinly veiled as to
be reasonably suspected of an intention to tax inter-state commerce and so impair
its freedom. Discrimination is one of the principal tests applied in determining the
constitutionality of a State tax. (Tiernan «. Rinker, 102 U.S. 123.) A discriminative
tax on imported goods would be unconstitutional, even if imposed on the goods after
they had left the hands of their original importers, and even after their original packages
had been broken. But discrimination is not the only test. A tax on inter-state trade
and traffic may be blended in a tax on domestic trade and traffic. In such a case the
discrimination intended might not be apparent, and yet the Courts might discern the
intention to tax inter-state trade and traffic, so lurking in the plan of taxation as to
bring it within the prohibition. The people of a State might find it compatible with
their views and interests to impose a tax on a portion of their own trade and business,
in order to have the privilege of taxing the larger volume of inter-state trade and
business of the same kind. Consequently in the State Freight Tax Case (15 Wall. 232)
a tax imposed by a State on all the freight, both domestic and inter-state, conveyed by
a railway company in and through a State was held unconstitutional. A similar principle
was affirmed in Telegraph Co. v. Texas, 105 U.S. 460.

There are several cases, however, in which it has been distinctly held that a State
may adopt a general system of taxation which may indirectly affect every branch of
commerce, and yet be within its constitutional right. The first was that of Brown v.
Houston, 114 U.S. 622, which is described by Dr. Pomeroy as one of the most interesting
and delicate cases involving the power of a State to tax goods of an inter-state origin. In
this case coal was mined in the State of Pennsylvania, and then shipped to New Orleans
in the State of Louisiana to be sold in the open market for the Pennsylvanian owners. The
coal was not landed at New Orleans, but remained on board the vessel in which it arrived
in port, and was sold whilst on board that vessel, the purchasers intending to take it out
of the country in a foreign bound vessel. The city corpoi'ation of New Orleans claimed
a tax on the coal under the terms of a general law taxing property within the State. It
was held by the Court that the coal had become intermingled with the general property
of the State ; that it was properly taxable according to the recognized rule, that after
goods have arrived at their place of destination in a State, either for use or for trade,
they become subject to any general tax laid on all property alike, without discrimination,
in the State. The decision in Brown v. Houston is not considered to be in conflict with
the rule of the immunity of original packages, because the bulk had been broken and the
first sale had taken place.

In the ease of Emert v. Missouri, 156 U.S. 296, it was held that a State can le\^' a
tax or demand a license fee for the right to sell goods in the possession of the seller,
and by him offered for sale, even if they are the products of another State. In the case
ot Pittsburg Coal Co. v. Bates, 156 U.S. 577, coal sent by river from Pennsylvania to
Louisiana, while kept on the boats by which it had been transported, was offered for
sale and part was sold ; held that it was liable to State taxation.

In Myers v. Commissioners of Baltimore county, 35 Atl. Rep. 144, a tax was
imposed by a State upon an average number of cattle, owned by a dealer within a State,
which had been received by him during the year from the Western States, held usually
for one day, and afterwards sold for export. It was held that, like other property
.situated within the State, they were liable to State taxation.

§389.] FINANCE AND TRADE. 849

These cases, however, will require very careful consideration before any opinion can
be expressed as to how far they would be applicable in the interpretation of the Consti-
tution of the Commonwealth.

A State has a right to tax all the domestic trades and occupations of its citizens.
In Ficklen v. Shelby Taxing District, 145 U.S. 1, where a resident citizen, engaged in
a general business, was subject to a particular tax, it was held that the fact that, for the
time being, the business happened to consist in whole or in part of negotiating sales
between residents and non-residents of goods made in another State, did not make such
a tax an imposition on inter-state commerce.

A State may tax personal property employed in interstate commerce, like other
personal property within its jurisdiction. (Marye v. Baltimore and Ohio R. Co., 127
U.S. 117 ; Western Union Tel. Co. ". Massachusetts, 125 U.S. 530 ; Western Union
Tel. Co. r. Taggart, 163 U.S. 1. Cooley's Const. Law, p. 80.)

In the case of Pullman's Palace Car Co. v. Pennsylvania, 141 U.S. 18, a statute of
Pennsylvania imposed a tax on the capital stock of every railroad and car company, in
the proportion which the number of miles operated by it within the State bore to the
whole number everywhere. It was upheld as to the non-resident Pullman Car Company,
because it had within the State constantly engaged in its business, though mainly
operated in inter-state journeys, a certain number of cars which thus acquired a sitii-t
there for taxation, the tax being in reality upon the cars as property. The majority of
the judges distinguished the tax on capital stock in this case from an occupation tax, a
license tax, or a tax on transit, and they applied the doctrine of Western Union Tel.
Co. V. Massachusetts, 125 U.S. 530, in which a tax on specified property was upheld.
(Cooley Const. Law, 80-1.) In the State Tax on Gross Receipts Case (15 Wall. 284), the
Courts upheld a State tax on the gross receipts of a carrying company, including receipts
from inter-state business. This doctrine has since been questioned in Philadelphia
Steamship Co. v. Penns3dvania, 122 U. S. 326. In that case the question was as to the
validity of a tax levied by Pennsylvania upon the gross receipts of a company, derived
from the carriage of persons and property by sea between different States, and it was
held that the tax was unconstitutional.

In Maine i-. Grand Trunk R. Co., 142 U.S. 217, a State statute provided that every
person working a railroad, within the State, should pay to the State treasurer an annual
excise tax, to be determined by reference to the gross receipts of the company, in
proportion to its mileage within and without the State. The statute was sustained on
the ground that it was a tax on a foreign corporation for the privilege of exercising its
franchises within the State. The decision in this case seems to be in conflict with that
in the Philadelphia Steamship Co. v. Pennsjdvania, 122 U.S. 326.

Other State Fees axu Cuarges Allowable. — In the following cases it has been
decided that the fees, charges, and licenses required by State laws do not violate the
rule of commercial freedom, viz., a stamp fee on snutf intended for domestic use, such
stamp being required simply to distinguish it from snuS designed for export, held
constitutional (Pace v. Burgess, 92 U.S. 372) ; a stamp fee on tobacco before its removal
from the manufactory, held constitutional (Turpin v. Burgess, 117 U.S. 504) ; a charge
for storage and outage collected on tobacco shipped out of a State and inspected at the
State warehouse, held constitutional (Turner v. Maryland, 107 U.S. 38); a tax on
peddlers of sewing machines, applied alike to those manufactured in and out of a State
held constitutional (Machine Co. v. Gage, 100 U.S. 675, but this case was afterwards
■overruled) ; a license fee collected from a foreign corporation, provided such corporation
is not engaged in carrying on foreign or inter-state commerce within the State ( Pembina
Mining Co. v. Pennsylvania, 125 U.S. 181); a license fee exacted from the agent of a
■corporation organized under a law of another State for the right to solicit insurance
business on buildings within the State, held constitutional (Paul i;. Virginia, 8 Wall. 168) ;
tolls for the use of improvements in connection with navigable streams and highways
<Mobile r. Kimball, 102 U.S. 691 ; Harman i;. Chicago, 147 U.S. 396, but the Federal
54

850 COMMENTARIES ON THE CONSTITUTION. [Seo. 92.

legislature could interpose and declare such tolls illegal) ; a charge for a license for all
engineers to pay the expenses of examination as to their competency to undertake
employment on inter-state railroads (Nashville Railroad Co. v. Alabama, 128 U.S. 96) ;
a charge on all vessels touching at quarantine stations, such charge to be applied to pay
the expenses of inspection (Morgan's S.S. Co. v. Louisiana Board of Health, 118 U.S.
455) ; a charge based on the tonnage of a vessel for the use of a wharf owned by a State,
provided such charge is not of a discriminating character (Packet Co. v. Keokuk, 95
U.S. 80; Transportation Co. v. Parkersburg, 107 U.S. 691) ; a charge for the use of
the improved internal waterways of a State, provided that such charge is not of a
discriminating character. (Huse v. Glover, 119 U.S. 543; Sands v. Manistee R. Im-
provement Co., 123 U.S. 288.)

State Police L.\ws Allowable. — In the License Tax Cases, 5 Wall. 462, Chief
Justice Taney said that the police powers of a State were nothing more or less than the
powers of government inherent in every sovereignty to the extent of its dominions. And
whether a State passes a quarantine law, or a law to punish offences, or to establish
courts of justice, or requiring certain instruments to be recorded, or to regulate com-
merce within its own limits, in every case it exercises the same power ; that is to say,
the power of sovereignty, the power to govern men and things within the limits of its
dominions. Chancellor Kent has given, as examples of the legitimate subjects of State
legislation, the following : unwholesome trades, slaughter-houses, operations offensive to
the senses, the deposit of powder, the application of steam-power to propel cars, the
building with combustible materials, and the burial of the dead. (Comm. ii. 340.) In
Patterson v. Kentucky, 97 U.S. 501, Mr. Justice Harlan stated that by the settled
doctrines of the court the police powers extend, at least, to the protection of the laws,
the health, and the property of the community, against the injurious exercise by a
citizen of liis own rights. It was said by Chief Justice Fuller, in Leisy v. Hardin, 135
U-S. 108, that the power to pass laws in respect to internal commerce, inspection,
quarantine laws, health laws, and laws in relation to bridges, ferries, and highwaj's,
belongs to the class of powers pertaining to locality, essential to local inter-communica-
tion, to the progress and development of local prosperity, and to the protection, safety,
and welfare of society — powers originally necessarily belonging to, and upon the
adoption of the Constitution reserved b}% the States, except so far as they fell within
the scope of a power confided to the General Government.

The primary objects of the police power of a State are the protection of health, the
prevention of fraud, and the preservation of morals. This rule is clear, but great
difficulty is sometimes experienced in its application.

The legislature of Louisiana incorporated the Slaughter-House Company, which
was empowered to construct and maintain stock-landings and yards and a grand
abattoir or slaughter-house at a specified place near New Orleans, and all live stock
brought to that city for food were required to be landed and kept at these j^ards, and
slaughtered at this abattoir, the company being authorized to demand compensation, the
maximum rates of which were fixed by the statute. Landing or slaughtering such
animals elsewhere was prohibited by heavy penalties. The exclusive privilege thus
conferred was to continue for twenty-five years. Certain persons, engaged in the trade
of butchering, residents of New Orleans and citizens of the United States, brought
appropriate actions in the State courts to test the validity of the statute. These suits
were finally carried to the Supreme Court of the United States. (Pomeroy's Const
Law, p. 174.) By a bare majority the Supreme Court affirmed the validity of the
Statute, as clearly within the competence of the State legislature in the exercise of its
police power. (Slaughter-House Cases, 16 Wall. 36.)

In Powell V. Pennsylvania, 127 U.S. 678, a State law prohibited the manufacture
and sale of oleomargarine. Powell was indicted for selling the prohibited article. It
was strongl}' suspected that the law was passed in the interests of the dairymen of the
State, as it was understood that oleomargarine, properly manufactured, was not injurious

§389.] FINANCE AND TRADE. 851

to health. Yet the court sustained the law as a projper exercise of the police power. In
Plumley v. Massachusetts, loo U.S. 461, a State law prohibited the sale of oleomargarine
artificially coloured to resemble butter. The law was sustained in its application to an
article imported from another State, on the ground that the resemblance of oleomargarine
so coloured to butter, led to deception and was in the nature of a fi-aud. The importation
of an article coloured to resemble butter could, in the opinion of the court, be prohibited
so long as the introduction of uncoloured oleomargarine was not interfered with. This
doctrine was carried a step further in the Armour Packing Co. v. Snyder, 84 Fed. Rep.
136. In that case a law of Minnesota forbade the sale of oleomargarine unless coloured
bright pink. An attempt was made to apply this law to goods which had been shipped
from Kansas into Minnesota, and which were marked as required by federal law, and
sold only in original packages. It was contended that the State law prevented deception
in the retail sale, and on this ground the requirement as to colour was sustained. This
reasoning was. however, disapproved of in the case of Collins v. Xew Hampshire, 171
U.S. 30, in which it was held that a State could not prohibit the sale of an article of
inter-state commerce, nor attach to it a condition which would render it unsaleable. In
Brimmer v. Rebman, 138 U.S. 78, the court clearly expressed the opinion that a Stat«
could not pass regulations excluding articles of commerce which are actually fit for and
belong to the domain of commerce. In the late case of SchoUenberger v. Pennsylvania,
171 U.S. 1, decided by the Federal Supreme Court in 1898, a statute of Pennsylv^ania
was challenged which forbade the introduction, in its pure and unadulterated condition,
of oleomargarine from another State, and its sale in original packages. It was held that
the statute was invalid so far as it applied to inter-state commerce. The difiference in
principle between Plumley v. Massachusetts and SchoUenberger i'. Pennsylvania is
obvious ; in the former case the article prohibited was coloured in imitation of butter,
and consequently was liable to deceive the public ; in the latter case it was a pure and
harmless article of commerce which could not be either honestly or legally excluded by
the State. In The People v. Hawkins, 31 N.Y. Suppl. 115, it was held that a State law
re(£uiring goods made by convict labour in other States to be so labelled when exposed
for sale was unconstitutional.

Police Powers AfTECrrNG Commerce. — The following laws passed by States have
been held to be a proper exercise of their police powers, viz. , a law excluding passengers,
animals, and goods infected mth disease, passengers known to be con^^cted criminals,
paupers, idiots, lunatics, and persons likely to become burdens on the State, held
constitutional (Bowman v. Chicago R. Co., 125 U.S. 465) ; a law forbidding the entrance
into a State of cattle likely to communicate fever, unless carried in cars subject to
certain precautions, held constitutional (Grimes i. Eddy, 126 Missouri, 168) ; a law for
the protection of persons and property, regulating the introduction and transportation
of nitro-ghcerine and other dangerous explosives, held constitutional (Patterson f.
Kentucky, 97 U.S. 501) ; a law imposing a license tax for the purpose of excluding an
obscene paper, held constitutional ( Preston v. Finley, 72 Fed. Rep. 850) ; a law forbidding
the transportation or exportation of diseased sheep, cattle, and meats ; a law forbidding
the importation of goods tending to spread disease, held constitutional (Leisy v. Hardin,
135 U.S. 100). The reasons and principles of these decisions are, that such persons,
animals, and commodities are not legitimate subjects of commerce.

" The several States have power to pass laws regulating the internal police of their
own territories, which territories include na\*igable rivers and harbours, as well as
unnavigable streams, and the land itself. These police measures are not, in any true
sense of the term, regulations of commerce, although they may sometimes have direct
reference to shipping, to the condition of harbours, and other instruments by which
commerce is carried on, or to the commodities themselves which are the objects of inter-
change and traffic. They are simply a part of the general system by which each State
endeavours to protect the good morals, lives, health, persons, and property of its
inhabitants. 1 has, if a State legislature, deeming it dangerous to permit poisons to be
sold without restriction, should pass a statute requiring a license from the druggist, or
placing him under any other species of restraint, such law would be unobjectionable.

852 COMMENTARIES ON THE CONSTITUTION. [Sec. 92.

although certain poisonous substances, as opium, are chiefly or wholly the products of
foreign countries, and therefore the objects of commerce. Again, most of the States
have enacted statutes prohibiting the sale of spirituous liquors in certain quantities and
at certain times and places, except by those persons who have complied with the provisions
of the statute, and have received licenses for that purpose. Such laws are within the
power of the States to pass. This entire class of statutes establishing police regulations
is within the purview of State legislation, whether Congress has legislated for the same
or similar purposes or not. Among them may be mentioned laws establishing
quarantine, licensing and controlling pilots, declaring the order in which ships shall
come to wharves and docks, regulating the use of wharves and docks, managing the
internal order of harbours, licensing the sale of spirituous liquors, poisons, and the like."
(Pomeroy's Const. Law, 10th ed. p. 275.)

Other Examples of Police Power. — Muun v. Illinois, 94 U.S. 113, decided in
1876, is a leading case illustrative of the police supervisory power of the States in matters
which may indirectly aflfect commerce, but which do not amount to an interference or
obstruction. The General Assembly of Illinois passed a law fixing the maximum charges
for the storage of grain in warehouses at Chicago, and other places in the State, in
which grain was stored in bulk and in which the grain of different owners was mixed
together, or stored in such a manner that the identity of different lots or parcels could
not be accurately preserved. The warehouses of the plaintiff were used as instruments
of commerce by those engaged in trade solely within the State, as well as by those
engaged in inter-state trade. It was held that this was a regulation of domestic
concerns, quite legal until displaced by Fedei-al legislation.

In the case of Escanaba Co. v. Chicago, 107 U. S, 678 (1882), the facts were as follows :
The municipal authorities of Chicago had passed regulations declaring it to be unlawful
to open any bridge within the city of Chicago during an appointed hour of the morning
and evening, Sundays excepted, or to keep any such bridge open during the daytime for
more than ten minutes at a time. The plaintiff's steam vessels were enrolled and licensed
to carry goods from the port of Escanaba, Michigan, to docks on a branch of the Chicago
River in the city of Chicago. In their course up the river to the docks, they had to
pass through draws of several bridges constructed over the stream by the city of Chicago.
Tliey complained of the regulations as being an obstruction to navigation. The Supreme
Court held that the power to control the bridges within the city had been properly and
fairly exercised ; that if the power had been used unnecessarily to obstruct navigation
the Federal legislature could have interfered and removed the obstruction ; that if the
power of the State and the power of the Federal legislature came into conflict in such a
case, the latter must control and the former yield. (Per Field, J., 107 U.S. 679.)

The control of bridges, dams, and ferries within a State and between two States is
generally left to the supervision of the local authorities, so long as they do not use those
works and agencies to obstruct the free flow of inter-stato commerce. Bridges and
ferries may be improved and utilized as aids to commerce. The States may establish
ferries across navigable rivers, within or adjacent to their jurisdiction, and they may
require the owners of boats to takeout licenses and pay fees. (Wiggins Ferry Co. v.
East St. Louis, 107 U.S. 365.) But this is justifiable only as a compensation for the
right of wharfage on the State territory. A ferry between States is a means of commerce
and cannot be taxed. (Gloucester Ferry Co. v. I'enrisylvania, 114 U.S. 196.) As to
dams and bridges, see Willson v. Blackbird Creek Marsh Co., 2 Pet. 245; Wheeling
Bridge Case, 18 How. 421, and Gilman v. Philadelphia, 3 Wall. 713.)

The States may improve navigable streams within their limits, and impose tolls on
those using them in order to defray expenses. (Mobile v. Kimball, 102 U.S. 691.) But
a license fee exacted for the use of the stream and not as a toll or compensation for
specified improvements and services is invalid. (Harman v. Chicago, 147 U.S. 396.)
The Federal legislature can interpose and supersede the authority of the State in all
these cases, whenever it deems it necessary to do so, in order to remove obstructions,
abate nuisances, stop exactions, carry out improvements or establish uniform regulations.
(Monongahela Nav. Co. v. United States, 148 U.S. 312; Wisconsin v. Duluth, 96
U.S. 379.)

§389.] FINANCE AND TRADE. 853

The muuicipal authorities of a State can regulate laundi-ies, and prohibit washing
and ironing within defined districts during certain hours of the night. (Barbier v.
Connolly, 113 U.S. 27 ; Soon Hing r. Crowley, 113 U.S. 703.) Such authorities can also
abolish bone factories in specified districts (Fertilizing Co. v. Hyde Park, 97 U.S.
659) ; and breweries (Barteme\-er v. Iowa, 14 Wall. 26 ; Foster r. Kansas, 112 U.S. 201).
See, however, Leisy r. Hardin, 135 U.S. 100; Wilson Act (America), and sec. 113 of
this Constitution.

A State can pass a law providing that any person introducing cattle which have not
wintered north of a certain line shall be liable to an action for damage done by the
introduced cattle, in spreading and communicating disease to other cattle. (Kimmish r.
BaU, 129 U.S. 217.)

Dr. Von Hoist, referring to the commerce claose of the American Constitution, says :
" In inter-state or international commerce, neither the goods nor the transportation of
property or persons can be taxed by the States. But the business as such and the
capital used in it are subject to the State's right of taxation. The correctness of this
principle certainly cannot be attacked, but just as little can it be disputed that it gives
the States the jx)wer of encroaching very seriously upon the congressional domain, if
they are onlj' careful about the way in which they do so. The Courts, indeed, are in no
wise bound to permit the simple question of the sufficiency of the form, in which a State
carries out its right of taxation, to determine their decisions ; and they do not do so.
As soon as they enter upon the question, whether the tax-laws of a Stat« materially
encroach upon the right of regulating international and inter-state commerce, subjective
views are given more or less away." (Const. Law of the U.S., p. 143.) In support of
his suggestion as to the power of the States to encroach on the Federal domain the
learned author cites the decision in the case of Liverpool Insurance Co. v. Massachusetts,
10 Wall. 566, according to which a State can tax foreign corporations at a higher rate
than similar corporations created by its own laws. That was the case of an insurance
company, and it has been held that insurance is not commerce, and is consequently not
within the protection of the commerce clause. No such discrimination would be
permissible in the case of a commercial corporation, either in America or in the Austra-
lian Commonwealth.

Limits of the Poucb Powebs. — The right of exclusion is founded on the vital
necessity of self-defence and self -protection. A State could not exclude persons, animals,
or merchandise unobjectionable in character, health, and quality, and fit subjects of
commerce. (Brimmer v. Rebnian, 138 U.S. 78.) In Henderson v. Mayor of New York,
92 U.S. 259, the extent to which a State could exclude paupers and criminals was not
clearl}- decided. A State law which forbids the entrance into the State of persons who
are not paupers, vagabonds, and criminals, and who are not unsound in body or mind, is
not a right exercise of the police power. (State v. Steamship " Constitution," 42 Cab'f.
579.)

Ports, HARBOtnts, asd Pilotage. — Until the Federal Parliament assumes the control
and management of ports, harbours, wharves, beacons, buoys, lights, and pilotage, the
State authorities, boards, and trusts, at present charged with the administration of
these works, will continue to exercise their functions and powers within the limits
assigned to them by State laws. Harbour and port dues, wharfage rates, light dues,
will be collected by the local authorities according to local laws ; they are not taxes on
commerce or in any way affecting the freedom of commerce, but merely compensations
for services rendered. (Re Rahrer, 140 U.S. 545 ; Steamship Co. v. JoUife, 2 Wall. 450 ;
Cooley V. Port Wardens, 12 How. 299.) States may regulate wharves at which vessels
receive passengers and cargo, and disembark and discharge same, and may impose dues
and rates sufficient to pay the expenses of executing the wharfage regulations.
(Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196-214; Transportation Co, v.
Parkersburg, 107 U.S. 691.) But the wharfage charges must be imposed and collected
without discrimination, and according to the value of the services rendered, or they wiU

854 COMMENTARIES ON THE CONSTITUTION. [Sec. 92.

come within the constitutional prohibition. (Inman v. Tinker, 95 U.S. 238.) It has
been held that a tax on every boat is a tax on boats, not on commerce (St. Louis v.
Wiggins Ferry Co. , 1 1 Wall. 423) ; but a tax on a vessel every time she enters a certain
harbour is not a tax on the vessel, but a tax on the business conducted by the vessel on
entering the harbour. (Steamship Co. ij. Port Wardens, 6 Wall. 31.) The reasonable-
ness of the rates charged for wharfage may be enquired into by the Federal Courts, to
ascertain whether in effect they amount to a duty on tonnage. (St. Louis v. Telegraph
Co., 139 U.S. 463.)

Quarantine. — Until the control over the various departments of quarantine is
assumed by the Federal Government, the States will continue to manage the quarantine
stations and to enforce the quarantine laws. Such laws may require persons engaged in
commerce to submit to medical examinations, and, if necessary, to remain isolated for
statutory periods. They may impose a charge on each vessel to defray the expenses of
inspection. In Train v. Boston Disinfectant Co., 144 Mass. 523, it was decided that a
State may, by its officers, disinfect all rags arriving at a port, and compel the owner to
pay the cost of disinfection. An ordinance of St. Louis provides that steamboats coming
from below Memphis, having had on board more than a specified nmnber of passengers
during the voyage, should remain in quarantine for not less than 48 hours and not more
than 20 days. It was held that this was a valid sanitary and quarantine law. (St.
Louis V. McCoy, 18 Missouri, 2.S8. )

The question whether wharfage, quarantine, and other such dues, fees and charges,
demanded by a State, are hoiia fide compensations for services rendered, or are mere
obstructions to commerce, must be determined according to the facts and circumstances
in each case. Such exactions must be fair, reasonable and uniform, and must not exceed
the requirements of the occasion. Charges which in the opinion of the Federal Courts
are excessive or discriminating could be declared unconstitutional, as involving violations
of the rule of inter-state commercial freedom.

FiSHKKiES AND Game Lavvs. — Control over game and fisheries within the limits of
a State is reserved to the State. In the enforcement of its game laws, a State could
prohibit all traffic in the meat of game within its limits, without reference to the place
where the animal was captured. (Magner v. People, 97 111. 33.) As to whether a State
coiild prohibit the exportation of animals protected by its game laws, there is a conflict
of authority. (Geer v. Connecticut, Kil U.S. 519.) A State law prohibiting the sale of
fish and game, at a time when they could not, under the law, be caught within the limits
of the State, has been held to be operative upon the sale of goods shipped from another
State, the reason given being that the statute could not be enforced with reference alone
to fish or game caught in the State. (Prentice and Kgan, Commerce Clause, p. 152.)

ExciSK Duties. — It has been already stated that, in the Constitution of the Com-
monwealth, freedom of inter-state trade and commerce is secured by two constitutional
provisions : (1) by the express declaration of sec. 92, that trade and commerce between
the States shall be absolutely free ; and ('!) by the withdrawal from the States of the
power to impose duties of customs and excise (sec. 92). In discussing the foregoing
cases we have been considering merely the probable effect of the constitutional affirma-
tion of absolute commercial freedom between the States. It remains to consider how
far the immunity of inter-state trade and commerce from State taxation is secured
through the exclusive control of excise being vested in the Federal Parliament. This
depends upon the meaning to be assigned to "excise." In our notes to sec. 90, the
various meanings of "excise" have been referred to; the first and original one being
that in which it is restricted to duties on the manufacture and production of commodi-
ties in a State ; whilst in another sense it has been extended to cover a host of
additional imposts — such as licenses to auctioneers, pawnbrokers, peddlers, dealers, and
persons permitted to carry guns and run carriages. The bulk of authority is in favour
of the limited connotation of the term ; and if that view be correct the States of the
Commonwealth will retain almost the same powers of taxation as those of the American

4 389.]

FINANCE AND TRADE. 855

Union, and the doctrine established by the leading cases, such as Brown v. Houston,
114 U.S. 622, will be of some assistance in determining the extent to which State
taxation of mixed inter-state and domestic commerce could go. On the other hand, if
"excise" were held to be capable of the wider signification alluded to, including all
kinds of inland licenses, then the States of the Commonwealth would be deprived of
vast powers and sources of local revenue, not contemplated by the framers of the
Constitution. If such an extended meaning were annexed to the term "excise" none
of the American cases would, in the interpretation of sec. 92, apply, except those
supporting the principle of State taxation of incomes derived from domestic and inter-
state business combined, and the taxation of incomes derived from properties employed
in both domestic and inter-state business.

IxsPECTiox Laws. — Charges covering the cost of inspecting goods, on their entrance
into a State, may be imposed and collected under the authority of State laws. (See
sac. 112.)

.State Business, Internal and Local. — The Federal Legislature has nothing to do
with the purely internal commerce of a State, carrietl on between different parts of the
same State, and confined exclusively to the jurisdiction and territory of the State with-
out affecting other nations or States. (Lord v. Steamship Co., 102 U.S. 541 ; Telegraph
Co. V. Texas, 10.5 U. S. 460. Baker, Annot. Const, p. .33. )

Commerce upon lakes lying within a State is not within federal regulation. The
internal c-ommerce and na\-igation of a State is exclusively subject to State regulation.
(Moore v. American Transp. Co., 24 How. I. Id. p. 38.)

A law of Iowa authorizes the manufacture of alcohol within the State for the
purposes of sale for mechanical, medicinal, culinary, and sacramental purposes ; and
prohibits its manufacture within the State for the purpose of exportation to, and sale
within, other States and foreign countries. Held, that the statute is not repugnant to
the commerce clause. (Kidd v. Pearson, 128 U.S. 1, 19. Id. p. 40. See Note, "State
Tax on a State Business or Profession," infra. )

Landing Passengers and Freight. — Foreign or inter-state commerce cannot be
carried on with a State without a wharf or other place within its limits on which
passengers and freights can be landed. The use of such a landing place in a State does
not confer upon the State a right to tax the capital of corporations engaged in such com-
merce, unless the same are domiciled within the jurisdiction of the State. The only
permissible interference by a State with such commerce is confined to port regulations,
and such measures as \r\\\ ensure safety and prevent confusion in landing and receiving
freight and passengers. (Gloucester Ferrv Co. v. Pennsylvania, 114 U.S. 196. Id.
p. 37.)

State Tax on Passenger.s. — A State cannot impose a tax on passengers arriving
in its ports from a foreign country ; such tax is a regulation of commerce and void.
(Passenger Cases. 7 How. 283 ; Baker, Annot. Const, p. 26 )

Where the object of a State law is to force the owners of vessels carrying passengers
from foreign countries to the ports of the State to pay a tax on such passengers, its
effect is to tax commerce, and so it is void (Henderson r. Maj'or of New York, 92
U.S 259 ; Chy Lung r. Freeman, 92 U.S. 275. Id. p. 27.)

The constitutional disability is not removed by calling the law an inspection law to
prevent the admission of criminals, paupers, lunatics, &c. (People v. Compagnie Gen.
Transatlantique, 107 U.S. 59. Id. p. 28.)

Transportation means the taking up of persons or property at one point ana putting
them down at another. A tax upon such transportation between two States is a tax
upon inter-state commerce. The character of this commerce between two States is not
changed by the character of the means of transportation. The power to regulate inter-
state and foreign commerce includes the power to determine when it shall be free and
when subject to duties or exactions. (Gloucester Ferry Co. v. Pennsylvania, :114 U.S.
196. Id. p. 28.)

State Tax ov Freight. — A tax on freight transported from one State to another
State is a regulation of inter state commerce ; when levied by a State, it is void so far
as it applies to articles carried through the State, or to articles carried into the State, or
to articles taken up withm the State and carried to points without. (State Freight Tax
Cases. 15 Wall. 2;J2 ; Baker, Annot. Const, p. 26.) But a tax levied on the gross
receipts of a railroad company is not a tax on inter-state transportation, and is not in
conflict with the commerce clause. (State Tax on Railway Gross Receipts Case, 15
Wall. 282, 284. Id. p. 2d.)

856 COMMENTARIES ON THE CONSTITUTION. [Sec. 92.

A tax imposed by a State upon a carrying company incorporated under its laws,
and levied directly upon the fares and freights received by the company for the carriage
of persons and goods between different States, and between the States and foreign
countries, is a tax upon inter-state and foreign commerce, and is unconstitutional.
(Philadelphia Steamship Co. v. Pennsylvania, 122 U.S. 326; Baker, Annot. Const,
p. 29.)

State Tax on a State Business or Profession. — A State has a right to tax its
own citizens for permission to prosecute any particular business or profession within the
State. (Nathan v. Louisiana, 8 How. 73. Id. p. 26. )

A license tax imposed by a city for the privilege of selling beer in casks manufactured
in the same State is not obnoxious to the Constitution. (Downham v. Alexandria
Council, 10 Wall. 173. Id. p. 26.)

A bj^-law of a city requiring every railroad company or express company transacting
business in such city, and having a business extending beyond the limits of the State, to
pay an annual license fee, and imposing penalties for violation, is not repugnant to the
commerce clause. (Osborne v. Mobile, 16 Wall. 479. Id. p. 26.)

A law of Texas levied a tax on persons selling wine and beer manufactured out of
the State, but exacted no such tax from those engaged in the sale of similar liquors
manufactured within the State : Held unconstitutional. (Tiernan v. Rinker, 102 U.S.
123. Id. p. 27.)

When a State grants to a city the right to license, tax and regulate ferries, the city
may impose a license tax on the keeping of ferries, although their boats ply between
landings lying in two different States. This is one of the undelegated powers reserved
to the States. (Wiggins Ferry Co. v. East St. Louis, 107 U.S. 365. Id. p. 29.)

The taxation of goods coming into a State from other States is inconsistent with
freedom of trade. But if after their arrival in the State, either for use or for trade, thej'
are subject to any general tax laid alike on all property, such taxation is not unconstitu-
tional. (Brown v. Houston, 114 U.S. 622. Id. p. 28.)

A State tax on persons engaged in selling liquors not manufactured in the State,
when no such tax is imposed on persons selling such liquors manufactured in the State,
is a discriminating tax, contrary to freedom of commerce among the States, and
therefore void. (Affirming Welton v. Missouri, 91 U.S. 275; Walling v. Michigan,
116 U.S. 446. 7rf. p. 29.)

A law of Tennessee imposed a tax of $50 upon each sleeping-car used by any railroad
company within the State and not owned by the company ; it was made unlawful
for railroad companies to use such cars unless such tax was paid. Held, that the Act
was a regulation of inter-state commerce, in so far as it applied to sleeping-cars used
upon trains which ran between points within the State and points without the State, or
which ran through the State. (Pickard v. Pullman Car Co., 117 U.S. 34. Tennessee v.
Pullman Southern Car Co., 117 U.S. 51. Id, p. 29.)

The commerce clause is not violated by a law of a State which exacts a license fee
from a corporation organized under the laws of another State, to enable such corporation
to have an office within the limits of the State enacting such law, provided such corpora-
tion is neither engaged in carrying on foreign or inter-state commerce, nor employed by
the Government of the United States. (Pembina Mining Company v. Pennsylvania, 125
U.S. 181. Id. p. 30.)

A State cannot, for the purpose of protecting its people against intemperance, enact
laws which regulate commerce between its people and those of other States of the Union,
unless the consent of Congress, express or implied, is first obtained. (Bowman v. Chicago
and N.W.R. Co., 125 U.S. 465. Id. p. ;^6.)

Railways, State Control of. — A State law requiring railway compapies operating
within its territory to fix their rates, annually, and to keep printed copies thereof posted
at all stations, is not unconstitutional ; it is a valid exercise of the police powers of the
State. (Railroad Co. v. Fuller, 17 Wall. 560. Baker, Annot. Const, p. .38.)

The power to regulate commerce among the several States was vested in the Federal
legislature in order to secure equality, and freedom in commercial intercourse against
discriminating State legislation ; it was never intended to interfere with iprivate
contracts not designed at the time they were made to impede such intercourse. (Rail-
road Co. V. Richmond, 19 Wall. 584. Id. p. 38.)

A law which fixes the minimum rates on a railroad extending from one State to
another is not repugnant to the commerce clause, although incidentally it may reach
beyond the limits of the State. (Peik v. Chicago and N WR. Co., 94 U.S. 164. Over-
ruled in part by Wabash Railway Co. v. Illinois, 118 U.S. ."57. Id. p. 39.)

§389.]

FINANCE AND TRADE. 857

A railroad company whose charter of incorporation does not exempt it from State
control may be required by State legislation to convey when called upon, and to charge
no more than a reasonable compensation, which may be limited by statute. (Winona,
Ac, R. Co. V. Blake, 94 U.S. 180. Id. p. 39.)

A statute of Illinois, enacting that any railroad company ^-ithin that State which
charges for transporting passengei-s or freight of the same class, the same or a greater
sum for any distance than for a longer distance, shall be liable to a penalty for unjust dis-
crimination, is, when applied to contracts for shipment be\'ond the State limits, a regu-
lation of commerce among the States, and is so far void. (Munn v. Illinois, 94 U.S. Il3 ;
Chicago Burlington, &c., R. Co. r. Iowa, id. loo ; Peik v. Chicago and N.W.R. Co., td.
164, examined and explained and partly over- ruled ; Wabash, &c., R. Co. v. Illiuois, 118
U.S. 587. Baker Annot. Const, p. 39.)

Caxvassixg Agencies. — An agency for aline of railroad between Chicago and New
York, established in San Francisco for the purpose of inducing passengers going from
San Francisco to New York to take that line from Chicago, but not engaged in selling
tickets for the route, or receiN^ing or paying out money on account of it, is an agency
engaged in inter-state commerce ; and a municipal license tax sought to be imposed
upon such agencj' is unconstitutional. (McCall v. California, 136 U.S. 104 ; Norfolk and
W.R. V. Pennsylvania, 136 U.S. 114. Baker, Annot. Const, p. 42.)

Locomotive Engineers. — A State statute which requires locomotive engineers,
engaged in running locomotive engines on railroads which are operated in and through
different States, to be examined as to their power of distinguishing the colours of signals,
and which requires the coi-poration whose trains are so operated to pa}' a fee for such
examination, is not repugnant to the commerce clause Until Congress legislates upon the
subject. (Nashville, &c., R. Co. v. Alabama, 128 U.S. 96. Baker, Annot. Const, p. 36.)

Quarantine Regclations. — A statute of Missouri which prohibited Mexican,
Texas, or Indian cattle from being driven or conveyed through the State between March
and December of each year is in conflict Avith the commerce clause. It is more than a
quarantine law, which a State in the exercise of its police powers may enact. (Railroad
Co. V. Husen, 95 U.S. 465. Baker, Annot. Const, p. 29.)

A law of Iowa, which provides that a person haWng in his possession within the
State " Texas cattle " which have not been wintered north of the northern boundary of
Missouri and Kansas shall be liable for any damage which may accrue from spreading
the disease known as " Texas cattle fever," is not in conflict with the commerce clause.
(Kimmish v. Ball, 129 U.S. 217. Baker, Annot. Const, p. 40.)

The laws of the States on the subject of quarantine, while they may in some of their
rules amount to a regulation of commerce, though not so designed, belong to that class
of laws which a State ma}' enact until Congress interposes b}' legislation over the subject,
or forbids State laws in relation thereto. Congress has not done this, but has adopted
the State laws upon that subject. (Morgan's Steamship Co. v. Louisiana Board of
Health, 118 U.S 455. Baker, Annot. Const, p. 40.)

The statute of Minnesota providing for inspection within the State of animals
designed for meat, by its necessarj' operation practicallj- excludes from the markets of
that State all fresh meat slaughtered in other States, and directly tends to restrict the
slaughtering of animals whose meat is to be sold in Minnesota to persons engaged in
sucii business in that State. This discrimination is an incumbrance on commerce among
the States, and is unconstitutional. It is not a rightful exercise of the police power of
the State. (Minnesota r. Barber, 136 U.S. 313. Baker, Annot. Const, p. 41.)

State Tax on Commercial Agents. — A State law imposing a license-tax upon
peddlers selling goods not grown or manufactured in the State is in conflict with the
commerce clause. (Following and re-atfirming Welton r. Missouri. Morrill c. Wisconsin,
Book 23, p. 1009, L.C.P. Co. Ed. U.S. Sup. Ct. Rep. Baker, Annot. Const, p. 28.)

No State may impose upon the products of other States brought therein for sale or
use, or upon citizens engaged in the sale therein or the transportation thereto of the
products of other States, more onerous public burdens or taxes than are imposed upon
like products of its own territorj-. (Guy v. Baltimore, 100 U.S. 434. Id. p. 28.)

A law of a State requiring a person engaged in peddling goods, wares, and
merchandise, not produced in the State, to take out a license and pay a tax thereon,
where no such license or tax is required of persons selling similar articles which are the
growth, produce or manufacture of the State, is in conflict \nth the commerce clause
(Welton r. Missouri, 91 U.S. 275. Id. p. 27.)

A tax on the amount of sales made by an auctioneer is a tax on the goods sold. And
if the tax is upon sales of imported goods sold in the original packages, and for the
importer, it is a regulation of commerce ; and such tax, if laid by a State or under its
authoritj', is invalid. (Cook v. Pennsylvania, 97 U.S. 566. Id. p'. 27.)

858 COMMENTARIES ON THE CONSTITUTION. [Sec. 92.

A State law which exacts a license from persons to enable them to take orders for
the sale of goods for persons residing in another State is repugnant to the commerce
clause. (Asher v. Texas, 128 U.S. 129. Id. p. 30.)

State Tax on Vessels. — A vessel is subject to taxation only in its port of register.
That is its situs. A law of another State, therefore, which assumes to levy a tax on
such vessel, is void as a regulation of commerce. (Haj-s v. Pacific Mail Steamship Co.,
17 How. 596. Baker, Annot. Const, p. 26.)

A State tax on a vessel by a State other than that in which it has its home port and
situs, when the vessel is lawfully engaged in inter-state transportation over the
navigable waters of the nation, is an interference with commerce. (Morgan v. Parhani,
16 Wall. 471. Id.p.'IQ.)

Dams and Bridges across Navigable Streams. — In the absence of Federal legis-
lation upon the subject a State may authorize the construction of a dam across a
navigable stream within the State. (Pound v. Turck, 95 U.S. 459. Baker, Annot.
Const, p. 35.)

A State Legislature may, in the absence of a federal law, authorize the construction
of a bridge across a navigable river wholly within the State ; such law being local in its
nature and a mere aid to commerce. But when the Federal Legislature intervenes, its
authority is supreme and its regulations are exclusive. (Cardwell u. Bridge Co., 113
U.S. 205. Id. p. 35.)

A State Legislature may determine the form, character, and height of railroad
bridges crossing its navigable waters. Until the Federal Legislature intervenes, the
State's powers in such cases is plenary. (Hamilton v. Vicksburg, &c., R. Co., 119
U.S. 280. /c/. p. 38.)

'I'he power to authorize the building of bridges is not to be found in the Federal
Constitution ; it has not been taken from the States. (Oilman v. Philadelphia, 3 Wall.
713. Id. p. 38.)

Pending a suit to have a bridge across the Mississippi River declared a nuisance, it
was competent for the Federal Legislature, under the power conferred by the commerce
clause, to interfere and legalize the bridge. (The Clinton Bridge, 10 Wall. 454. Id.
p. 38.)

Other State Taxes. — A State cannot, for the purpose of defraying the expenses
of quarantine regulations, levy a tax on a vessel entering her harbours in pursuit of
commerce, and owned in foreign ports. (Peete n. Morgan, 19 Wall. 581. Id. p. 106.)

State tonnage duties upon all ships plying in the navigable waters of the State are a
breach of the commerce clause. The prohibition applies to all ships engaged in the
coasting trade, whether trading between ports in different States, or between ports in
the same State. Tonnage duties are taxes, and are within the prohibition against State
duties on imports and exports. (State Tonnage Tax Cases, 12 Wall. 204. Id. )

State taxes imposed on ships, owned by its citizens, as property, and upon a
property valuation, are not in conflict with the commerce clause. T'he enrolment of a
ship does not exempt the owner from taxation of his interest as property. (Transportation
Co. V. Wheeling, 99 U.S. 273. Id.)

A duty, or tax, or burden imposed upon vessels under the authority of the State,
and measured by the capacity of the vessel, and which is in its essence a contribution
claimed for the pri\alege of arriving and departing from a port of the United States, is
within the prohibition against State duties on imports and exports. (Cannon v. New
Orleans, 20 Wall. 577. Id.)

A law of Pennsylvania providing that vessels neglecting or refusing to take a pilot
shall forfeit a certain sum for the use of the society for relief of distressed and decayed
pilots, &c., is not within that prohibition. (Cooley v. Port Wardens, 12 How. 299. Id.)

§ 390. *' Goods Imported before the Imposition of
Uniform Duties of Customs."

The object of the second paragraph of this section is to prevent merchants, before
the imposition of the uniform tariff, from " loading up" imported goods in a Colony or
State where there are no duties, or where the duties arc light, in the expectation that
as soon as the border customs are abolished such goods will be free of the whole
Commonwealth. With the present free-trade tariff of New South Wales, importers in
every colony would have been able, but for this provi.sion, to evade customs duties on
general merchandise altogether, for the first year or so of the uniform tariff, by

§390] FINANCE AND TRADE. 859

warehousing everything at Sydney in advance of the tariff, and not distributing into the
State of destination until the intercolonial customs barriei-s were down. This section
checkmates any such device by retaining the intercolonial barriers for two years after
the uniform tariff, so far as imported goods are concerned, to the extent to which those
goods have not paid the Commonwealth tariff.

This section only prevents the " loading up," in one State, of goods for distribution
in another ; it does not prevent, for instance, the importation into Xew South Wales, in
the expectation of an increased tariff, of goods to supply the Xew South Wales market.
That is an operation which is always possible when there is a prospect of increased
customs taxation ; and it can only be met by the recognized constitutional practice of
collecting the new duties from the date on which the House of Representatives passes
the preliminary resolution to impose the duties, and making the subsequent Customs
Act take effect retrospectively from that daj'. As to this practice, see Exp. Wallace
and Co., 13 X.S.W. L.R. 1, and the authorities there cited. In that case the applicants,
before the passing ot the Customs Act, applied for a writ of mandamus to compel the
Collector of Customs to sign bills of entry for certain goods without payment of the new
duties. The court, in the exercise of its discretion, refused the writ on the ground of
established constitutional practice ; though it was admitted that, pending the passing of
the Customs Act, an action would lie against the Government. (See Stevenson r. The
Queen, 2 W.W. and a'B., L. [Vic] 143.)

Imported. — After the establishment of the Commonwealth the Constitution does
not speak of "imports" or "exports" from one State to another, but only of imports
into, or exports from, the Commonwealth ; and in the case of inter-state trade the
phrases used are " goods passing into," or " goods passing out of " a State. (See p. 84o,
xupra ; and sees. 93, 95, 104, 112.) In other words, the Constitution is careful to regard
the Commonwealth, so far as imports and exports are concemetl, as a single whole, and
to regard the movement of trade within the Commonwealth as internal trade merely.

The word " imported" in this section is not confined to imports after the establish-
ment of the Commonwealth, but includes all goods imported before the imposition of the
uniform tariff. That it is intended to apply to goods imported before as well as after the
establishment of the Commonwealth, is shown by the words " or into any colony which,
whilst the goods remain therein, becomes a State." This application of the section to
imports made before the commencement of the Constitution is not really retrospective
in character ; it merely means that certain intercolonial duties preWously chargeable
continue to be chargeable on certain goods.

Questions may arise as to the meaning of the word "imported," and [as to the
precise time when the importation of goods is to be deemed completed. On this point
some assistance may be derived from the decision of the Privy Coimcil in the case of
the Canada Sugar Refinery Co. v. The Queen (1898), App. Ca. 73o. By the Canadian
Tariff Act, 1895, which came into force on .3rd May of that year, a duty of one-half
cent per pound was imposed on raw sugar "imported into Canada." On 29th April the
Cynthiana, from Antwerp, carrying a cargo of sugar consigned to Montreal, put into
the port of Xorth Sydney, Cape Breton, Canada, in order to coal, and the master made
his report inwards of his ship and cargo in compliance with the 25th sec. of the Customs
Act. On the same day he made his report outwards and obtained the Customs certifi-
cate of clearance for Montreal. On 2nd May the importei-s of the sugar made an entry
at the Montreal Customs House of the sugar, and a wari-ant was issued for its landing
duty free. On 3rd May the new duty came inta force. The Cynthiana reached the
wharf in the port of Montreal on 4th May. The Collector of Customs then cancelled
the free entry, and claimed that the goods were liable to dutj'. On his behalf it was
contended that the goods were not imported into Canada until they were landed, or at
any rate until they arrived within the port of Montreal ; that the gootls were not
imported into Canada by the mere fact of the vessel entering a port of call within the

860 COMMENTARIES ON THE CONSTITUTION, [Sec. 93.

Dominion on her way to her ultimate destination; that "imported" meant at least
arrival in the port of discharge. This view was sustained by the Privy Council on
appeal.

§ 391. " On Thence Passing into Another State."

Duty under this section is only payable on the passage of the goods "thence " — i.e.,
from the State into which they were imported before the uniform tariff, and in which
they were at the imposition of the uniform tariff — into another State. On their first
passage across a State border after the imposition of the tariff, if they have originally
paid no duty at all, they will be liable to pay the whole amount of the duty chargeable
on importation ; if they have already paid a smaller duty, they will be liable for the
difference ; whilst if they have paid an equal or larger duty, they will not be liable at
all. Having once crossed a border, and paid the balance of duty, they are then free of
the Commonwealth.

It will doubtless be difficult in some cases to identify the goods which are charge-
able under this section ; but all that is required is that rough justice should be done to
the revenues of the several States, and a possible leakage on small consignments and
broken packages will be a trifling matter. Very little duty is likely to be collected
under the section, for the simple reason that its existence will effectually prevent the
transactions which it is designed to meet.

On the expiration of two years from the imposition of uniform customs, the provision
will lapse altogether. By that time the danger will be past, because no importer is likely
to lay in large stocks more than two years before they can be disposed of.

Payment to States for five years after uniform tariffs.

93. During the first five years after the imposition of
uniform duties of customs, and thereafter until the ParUaraent
otherwise provides^^^ —

(i.) The duties of customs chargeable on goods
imported into a State and afterwards passing
into another State for consumption^^^, and the
duties of excise paid on goods produced or
manufactured in a State and afterwards pass-
ing into another State for consumption, shall
be taken to have been collected^^ not in the
former but in the latter State :
(ii.) Subject to the last sub-section^®^ the Common-
wealth shall credit revenue, debit expenditure,
and pay balances to the several States as
prescribed for the period preceding the
imposition of uniform duties of customs.

HiSTOKiCAL Note. — The provisions of the 1891 Bill with respect to distribution
before the uniform tariff (see Hist. Note, sec. 89), were to apply after the uniform tariff
" until the Parliament otherwise provides," except that there was a book-keeping adjust-
ment with regard to customs and excise, and a provision for debiting the States with any
bounties taken over. (See pp. 134, 139, supra.)

§ 392.]

FINANCE AND TRADE. 861

Briefly, all revenue was to be credited to the State in which it was collected, and all
expenditure was to be debited per capita ; but only until the Parliament should make
different pro\ision. From the date of the imposition of the federal tariff, the Parliament
was to have an absolutely free hand. (Conv. Deb., 1891, pp. 802-833.)

Adelaide Session, 1897 (Debates, pp, 877-908, 1067-70).— The system of distribution
recommended by the Finance Committee, and embodied in the first draft, proArided for
three periods : -(1) Before the uniform tariff, the provision was the same as in 1891.
(2) For five years after the uniform tariff, the same basis was to be retained, subject to
the book-keeping adjustments necessitated by intercolonial free-trade. (3) After five
years, revenue was to be credited and expenditure debited on a jyer capita basis. (See
pp. 169-170, supra.)

These provisions were debated (pp. 877-908) on the consideration of the clause
dealing with distribution before the uniform tariff. Mr. McMillan pointed out that the
difficulty of distribution arose from the fact that the federal tariff and its ojjeration
were unknown quantities. The problem was to secure fair distribution without
unnecessary taxation in any colony, and yet without leaving an undue shortage of
revenue in any colony. Tliere were two aspects of the problem : the question of
guarantees (see Historical Note, sec. 87) and the question of distribution. As to the
latter, the per capita system woidd be unfair to New South Wales for some years Mr.
Reid had wished to postpone it for ten years, but the Finance Ck)mmittee had compro-
mised with five. The "detestable book-keeping system" on the borders was an
unwelcome necessity, to be abolished as soon as possible. Mr. Holder, Sir George
'I'urner, and Mr. Reid all agreed that if the book-keeping could be done away with it
would be a great blessing ; and eventually the clause was postponed to enable the
Treasurers to consult on the subject. Subsequently (, Debates, pp. 1067-70) the
Treasurers brought up the sliding-scale system, which only involved book-keeping for
one year, and a subsequent scaling down, by equal gradations, from the contribution
basis of the test year to a per capita basis at the end of five years. The sliding scale,
on the recommendation of the Treasurers, was adopted with hardly any debate, though
Mr. McMillan feared that, owing to probable " loading up " of dutiable goods, the test
year would be a bad one for New South Wales. (See pp. 176-8, supra).

Sydney Convention, 1S98 (Debates, pp. 3o-222>.— The sliding scale was unfavourably
criticized in New South Wales, as well as in all the other colonies except South
Australia, where it was lucidly explained and strongly championed by Mr. Holder. In
the general debate at the Sydne}' Convention it did not receive much support, and a new
Finance Committee was appointed, to which the whole question was referred. (See p.
188, supra.)

Melbourne Convention, 1898 (Debates, pp. 775 et seqq., 1041-84).— In accordance
with the report of the Finance Committee, the sliding scale and the ultimate per capita
distribution were struck out, and the book-keeping system was restored for five years
and " thereafter until the Parliament otherwise provides" (see p. 197, sujn-a.)

The basis of charging expenditure was also altered (see Historical Note, sec. 89).
There was little debate upon the mode of distribution— the discussion turning chiefly
on the question of guarantees. Drafting amendments were made before the first Report
and after the fourth Report.

§ 392. " During the First Five Years .... and
Thereafter until the Parliament Otherwise Provides."

This section provides for the distribution of the surplus revenue during the second
of the three periods marked out by the Constitution (see sees. 89, 94). The characteristic
of this period is that there is now a uniform tariff for the whole Commonwealth,
and absolute freedom of trade between the States (with the temporary revenue-
protecting exception in the second paragraph of sec. 92). Sees. 90 and 92, whose

862 COMMENTARIES ON THE CONSTITUTION. [Sec. 93.

operation has been suspended "until the imposition of uniform duties of customs," aii>
now in operation, and the commercial unit}' of Australia is an accomplished fact.

This is the period during which the financial provisions of the Constitution will be
put to their first and severest test. So long as each State retained its own tariff, the
disturbance of pre-existing conditions was slight ; the basis of revenue and expenditure
in each State was very much as it had been during the old provincial regime, except
for the inconsiderable item of new federal expenditure, borne in proportion to population.
But now the provincial tariffs have disappeared ; customs taxation throughout the
Commonwealth is on a uniform basis ; and each State must accordinglj' regulate its
budget, both as regards local expenditure and local taxation, to the new circumstances.
The diflBculty of establishing a common tariff has been the " lion in the path " for man^"^
years, and its final establishment must inevitably be followed by extensive financial
rearrangements.

This period has a minimum duration of five years ; and at the expiration of those
five years it will still continue until the Parliament, under sec. 94, has substituted some
other basis of distribution. The expiration of the five j'ears does not annul this section,
but merely annuls'its sanctity as a constitutional provision, and makes it alterable by the
Parliament, subject of course to the provisions of sec. 94.

Any disagreement between the Houses on the question of the new basis will not
leave the Conimonw^ealth without a financial system, but will merely prolong the operation
of this section.

§ 393. "For Consumption."

" Consumption " is a term of Economics, applied to denote the absorption, by use,
of all kinds of wealth. It is the converse of production ; production having reference to
the creation of wealth, and consumption to its utilization. "As production is the first
stage in economics, consumption is the last. Consumption is the chief end of industry,
for everything that is produced and exchanged is intended in some way to be
consumed." (Chambers' Encycl. stt6 <iV. "Consumption."

The process of consumption, in the case of many articles, may be a verj' prolonged
one. The consumption of food or fuel is immediate ; but the consumption of a waggon,
or a steam-engine, or a work of art, or a jewel, many extend over many years, or
indefinitely. The expression "passing into another State for consumption" is not
intended to imply that complete consumption within the State should be contem-
plated, but merely that distribution to consumers within the State is contemplated.
Goods are "for consumption" in a State if it is intended that they shall be retailed
in that State.

§ 394. " Shall be Taken to have been Collected."

Notwithstanding the great difference between this and the preceding period as
regards the mode of raising revenue, the alteration in the mode of distributing the
surplus is very slight. The object is still the same — to give to each State credit for the
revenue which it has contributed, and to charge each State with its fair share of the
federal expenditure. Accordingly the provisions for debiting expenditure remain as
before (see sec. 89, sxipra) ; but with regard to crediting revenue one further adjustment
is needed. With free trade between the States, the State in which imports ])aj' customs
duty, or products pay excise duty, is not necessaril}- the State in M'hich tlie goods are
retailed or consumed ; and, on the assumption that these duties are paid by the
consumer — or at least by the people of the State in which the goods are retailed— it is
necessary to make an adjustment in respect of goods which have paid duty in one State,
but which afterwards pass into another State for consumption.

To obtain the necessary facts upon which to base this adjustment, it will be neces-
sary, during the whole of this period, to keep an account of the passing from one State

§§394-395] FINANCE AND TRADE. 863

to another of all goods on which customs or excise duty has been paid. That this can
l>e done with absolute completeness and accuracy is not to be expected ; but small
omissions will not seriously interfere with the efficiency of the provision — especially as
they are likely to occur on both sides of the ledger, and so cancel one another. There
will be no motive on the part of traders to evade observation, because no duty is
chargeable to them ; it is merely a matter of book-keeping entries for and against the
several States.

§ 395. " Subject to the last Sub-section," &c.

The adjustment mentionetl in sub-s. i. is the only ditference, as regards the mode of
♦listribution, between this and the preceding period. It is ob\4ous, however, that owing
to the gieat difference in the incidence of customs taxation— and, in a less degree, of
excise taxation — the amounts and proportions actually distributed to the several States
will probably differ very considerably' from those of the years immediately preceding.
It is for the purpose of meeting any temporary dislocation of State finances which may
thus be caused that sec. 96 has been added. (See Notes to that section.)

Distribution of surplus.

94. After five years from the imposition of uniform duties
of customs^ the Parliament may provide*"^, on such basis as
it deems fair^, for the monthly payment to the several States
of all surplus revenue ot the Commonwealth^

Historical Note. — Under the Bill of 1891 a similar provision took effect
immediately after the imposition of uniform duties (see Historical Note, sec. 93).

Adelaide Se^ion, 1897 (Debates, p. 1070). — The clause as drafted in Adelaide
provided that after the five years "all surplus revenue over the expenditure of the
Commonwealth shall be distributed month by month among the several States in
proportion to the numbers of their people as shown by the latest statistics of the Com-
monwealth." In Committee, Mr. Reid secured the insertion of the explanatory words
" Elach State shall be deemed to contribute to the revenue an equal sum per head of the
population."

Melbourne Session, 1898 (Debates, pp. 775, &c., 108-5-99, 2380-1). — The proWsion for
ultimate distribution, as embodied in the Finance Committee's Report, was " on such
V)asis as shall be fair to the several States, and in a proportion and after a method to be
determined by the Parliament. " To make it clear that the Parliament alone was to be
the judge of what was fair, these words were altered to "on the basis which the Parlia-
ment deems fair." Sir George Turner still wished to keep to the per capita basis ; and
Mr. Glynn wished the discretion of the Parliament to be limited to postponing the per
capita basis for, at most, another five years. However, the Finance Committee's
pi"oposal was carried by 25 to 17 — the New South Wales representatives who were
present voting solid for it, and the Victorians solid against it. Mr. Glynn then moved
to add a further provision that after ten years the distribution should be per capita.
The debate showed a general desire for ultimate per capita distribution — with the single
exception of Sir John Forrest, who saw no prospect of its being fair to Western Australia.
But Mr. Holder, Mr. Reid, and others wished it left open, being confident that the
j>er capita system would be adopted as early as possible, but unwilling to tie the hands
of the Parliament. The amendment was lost by 31 to 16— New South Wales and
Victoria again voting solid with the majority and the minority respectively.

On the second recommittal Mr. Glynn again moved an amendment with the same
object ; but it was defeated by 23 to 14. Drafting amendments were made before the
first Report, and after the fouth Report.

«64 COMMENTARIES ON THE CONSTITUTION. [Sec. 94.

§ 396. " After Five Years from the Imposition of Uniform
Duties of Customs."

This section provides for the termination of the second period marked out by the
Constitution for the distribution of revenue according to principles fixed by the Consti-
tution, and inaugurates the third and last period, from the commencement of vchich the
monthly distribution will be left to the Parliament to determine on such basis as it
deems fair. From the moment when this section comes into operation — that is to say,
at the expiration of the five years mentioned — the Parliament will have a new power of
legislation — the power to supersede sec. 93 by legislation of its own under this section.

§ 397. "The Parliament may Provide."

The Parliament, being a body with purely legislative powers, can only "provide "
by means of a law. (See sec. 51 — xxxvi. ) The power to make this law does not attach
until the expiration of the five years mentioned. The section clearly requires, not only
that the provision by the Parliament shall not take e£ect until after that time, but that
it shall not be made until after that time. It seems therefore that the Parliament
cannot, before the expiration of the five years, pass a law under this section to take
effect on or after such expiration.

This disability is intentional. The object of postponing the legislative power of the
Parliament until the expiration of five years is that the Parliament should not be
empowered to take any action until it has sufficient data and material before it to enable
it to fix the basis of distribution. (See Conv. Deb., Melb., pp. 108.5-9 ) The object of
the Convention was that the basis prescribed in sec. 93 should remain in force until tlie
Federal Parliament, with five years' experience behind it, should agree upon a better
basis. The Convention recognized themselves unable, owing to the absence of data, to
determine the ultimate basis, and were careful to ensure that the basis which was to
supersede their provisional basis should not be determined upon until the data of five
years' experience were available.

Any provision which Parliament may make under this section will not be unalterable,
and therefore will not necessarily be final. The legislative power under which any such
law is made will continue in existence after the law is made, and will justify different
provision being made from time to time as circumstances may demand. It would
undoubtedly be undesirable for the financial basis of the Constitution to be frequently
altered ; but it might be still more undesirable for a financial basis which had been
ill-conceived, or had outlived its usefulness, to be made unalterable, except by an
amendment of the Constitution.

§ 398. "On such Basis as it Deems Fair."

The words as originally proposed by the Finance Committee were " on such basis
as shall be fair ;" but these words were altered to prevent any possibility of its being
contended that any assumed unfairness might be made the subject of an appeal to the
High Court, thereby making that tribunal the arbiter of a purely political matter.
(See Conv. Ueb., Melb., pp. 1085-9.) The Parliament is therefore laid under a solemn
constitutional obligation to provide a " fair " basis, but it is made the sole judge of what
is fair. The command is addressed to the conscience of the Parliament and of the
people ; and such a command, embodied in the Constitution, is not likely to be
disregarded.

But leaving intentional unfairness out of the question, the question what is fair may
lead to considerable differences of opinion. It is submitted that the constitutional com-
mand that the basis shall be " fair" will strengthen the claims of a basis founded on a
broad principle. The only basis which the Convention— from the standpoint of existing
provincial condition.? — could agree upon as "fair" was the basis of the contributions

4§ 398-399.] FINANCE AND TRADE. 865

made and the benefits received by the people of each State. But the basis which nearly
every member of the Convention regarded — from the federal standpoint —as being
ultimately fair, was the basis of distribution in proportion to population. The contri-
bution basis was regarded as fair for the present - but somewhat unfederal. The
population basis was regarded as being unfair for the present, owing to the conditions
which had been created by the pro\"incial system, and which would take some time to
remove ; but as being the ideal which, under federal conditions, it would be possible to
approach, and finally to reach. The first Adelaide draft, and afterwards the Adelaide
sliding scale, proposed to reach the per capita basis, by different roads, at the end of five
years ; and the final decision of the Convention represents, not so much & doubt that the
per capita basis will be ultimately fair, but a doubt whether the circumstances which
made it unfair for the present will not take more than five years to eliminate. The
•Convention certainlj' expected that the basis chosen b3' the Parliament would be, if not
the per capita basis, at least an approximation to it — a compromise, in fact, between the
per capita basis and the contribution basis. Somewhere between these two principles it
is likely that the ultimate solution will be found.

§ 399. " For the Monthly Payment to the Several States
of all Surplus Revenue of the Commonwealth."

Although the basis of fair apportionment is left to the Commonwealth, two things
are laid down by the Constitution: (1) that all surplus revenue must be paid to the
States ; (2) that such payments must be made monthly. The proportions in which
payments are to be made to each State are to be controlled by the Parliament ; the
provisions for crediting revenue and debiting expenditure may be superseded by any
other means of ari-iving at the respective shares of the surplus ; but on one basis or
another, the whole surplus must be distributed monthly among the several States.

Customs duties of Western Australia.

95. Xotwith-standing anything in this Constitution^, the
Parliament of the State of Western AustraHa, if that State
be an Original State, may, during the first five years^**^ after
the imposition of uniform duties of customs, impose duties of
customs*""^ on goods passing into that State and not originally
imported from beyond the limits of the Commonwealth ; and
such duties shall be collected by the Commonwealth.

But any duty so imposed on any goods shall not exceed^*^
during the first of such years the duty chargeable on the
goods under the law of Western Australia in force at the
imposition of uniform duties, and shall not exceed durino- the
second, third, fourth, and fifth of such years respectively,
four-fifths, three-fifths, two-fifths, and one-fifth of such latter
dut}^ and all duties imposed under this section shall cease at
the expiration of the fifth year after the imposition of uniform
duties.

866 COMMENTARIES ON THE CONSTITUTION. [Sec. 95.

If at any time during the five years the duty on any
goods under this section is higher than the duty imposed by
the Commonwealth on the importation of the Hke goods,
then such higher duty shall be collected on the goods when
imported into Western Australia from beyond the limits of
the Commonwealth.

Historical Note.— Throughout the sittings of the Convention of 1897-8, it was
recognized that the abnormal position of Western Australia would for some years
necessitate special treatment. With her large unsettled mining population, and her
resources in other directions comparatively undeveloped, she was compelled to rely more
largely than any other colony on her customs revenue, and direct taxation to any great
extent was out of the question. Moreover, a large part of her customs revenue was
levied on produce from the other colonies ; and it was estimated that her receipts from
the federal tariff, on imports from abroad only, would be inadequate for her needs. The
expected shortage, though large per head of the population, and therefore a serious
matter for Western Australia, was not a very large matter from the point of view of the
Commonwealth.

At the Melbourne session, the Finance Committee, in their report, brought up a
somewhat complicated clause to provide compensation to Western Australia for five
years after the imposition of the uniform tariff. It provided that an account should be
kept of Western Australia's " net loss" of revenue due to the substitution of the federal
for the provincial tariff. This "net loss " was to be calculated on the difference between
the amount of customs and excise revenue actually collected in Western Australia during
each year under the federal tariff, and the amount which would have been collected if the
old provincial tariff' of Western Australia had been applied to the actual imports, produce,
and manufactures of that year. The "proportionate net loss" of Western Australia
was to be the ratio between the amount of the " net loss " and the amount of revenue
collected in Western Australia. The "proportionate net loss" (if any) of each of the
other States was to be similarly calculated, and if the "proportionate net loss" ot
Westeni Australia was greater than the average, the Commonwealth was to pay to that
State a sum which would equalize her proportionate net loss with such average. That
is to say, an arbitrary method was fixed for determining the ratio in which the customs
and excise revenue of Western Australia was reduced ; and if that ratio exceeded the
average of similar ratios in the other States, Western Australia was to receive such a
subsidy as would equalize her with the average.

Sir John Forrest objected to this because it made a special case of his colony, and he
would have preferred a clause of general application. A general " financial assistance"
clause moved by Mr. Henry had already been defeated (see Historical Note, sec. 96),
and Sir John Forrest now proposed to extend the benefit of the Finance Committee's
provision to every State whose "proportionate net loss" was above the average.
Moreover, he proposed , in striking the average, to take account of ' ' net gains " as well
as " net losses "— which would greatly decrease the average "proportionate net loss."
and so increase the amount to be made good. After some discussion, Sir John Forrest
withdrew his amendment in favour of one by Sir George Turner, providing that the
Commonwealth should pay to each State the whole amount of its absolute net loss. The
discussion thus drifted from the question of a provision for Western Australia to the
general question of guarantees to the States — and guarantees on the highlj' artificial
basis of applying a non-existing tariff to actual imports and manufactures. Accordingly
Sir John Forrest, to diminish the artificialit}', proposed to add to Sir Geo. Turner's
clause a proviso that no payment should be made, under the clause, to any State in
which the customs and excise revenue collected was greater after the uniform tariff than
before. The whole proposition, however, was strongly opposed by the New South WalcH

§§400 401] FINTANCE AND TRADE. 867

representatives on the ground tliat the whole series of payments must come out of the
pockets of that colon}— a contention in which thej* were borne out by Mr. Holder and
others. Sir John Forrest's mitigating amendment was rejected by 25 to 19, and Sir
George Turner then withdrew his clause.

Meanwhile the Finance Committee's West Australian clause had been criticized a-s
being based on a false principle. The loss of revenue to Western Australia would be
purely a Treasury loss, resulting from the remission of customs taxation in that colony ;
and it was contended that it ought in fairness to be borne, not by the Commonwealth,
but by the tax-payers of Western Australia. Direct taxation being for the present
impracticable, it had been suggested in the Finance Committee, and was again suggested
in debate, that Western Australia should be allowed for a time to levy customs duties
on a provincial tariff, in addition to those le\-ied bj- the Commonwealth. There was a
difficulty about this, however. Taxation on imports from abroad would not, Sir John
Forrest averred, produce the revenue required ; whilst the proposal to allow Western
Australia to levy duties on intercolonial imports might give rise to a similar demand on
the part of other colonies, and so endanger the vital principle of intercolonial freetrade.
Besides, the free markets of Western Australia were one of the substantial benefits of
Federation to which her next-door neighbour. South Australia, looked forward.

Sir Geo. Turner's clause being disposed of, Mr. Deakin proposed a clause allowing
the Commonwealth, by agreement with Western Australia, to levy additional duties on
imports from abroad into that colony ; and also allowing the intercolonial duties of that
colony to remain in force, subject to the reduction of one-fifth every year, till they
disappeared at the end of five years. Westei-n Australia did not like the first part of
this proposal, and South Australia did not like the second. It was pointe<l out that if
the intercolonial dut}' were higher than the Commonwealth duty, there would be a
preference to foreign over Australian goods ; and also that there ought to be some more
elastic provision which would enable Western Australia to deal independently with
every item of the tariff, in the waj' of making further reductions. After a long debate,
and the defeat of several amendments, Mr. Deakin's clause was carried by 30 to 10, it
being imderstood that the Drafting Committee would modify it to meet some of the
objections raised. (Conv. Deb., Melb., pp. 779, 1122-r243.)

On the first recommittal the re<lraft was subraitte<l and carried, practically in the
form of the first two paragraphs of the section. The third paragraph, preventing a
preference to foreign imports, was added on the second recommittal, at Mr. Holder's
suggestion ; and after the fourth Report some final drafting amendments were made.

In the Bill as introduced in the Imperial Parliament, the words "if that State be
an Original State " were inserted.

.^ 400. " Notwithstanding Anything in this Constitution."

This section is an exception to sections 90 and 92, which provide that the Federal

Parliament shall have exclusive power to impose customs duties, and that trade,
commerce and intercourse among the States shall be absolutely free.

For an account of the reasons which led the Convention to make this exception in
favour of Western Australia see Historical Note. The concession was the more easilj'
agreed to because the isolation of the settled districts of Western Australia, the com-
paratively small population of the colony, and the absence of land communication with
the rest of Australia, combined to make it a matter of minor importance to the
Commonwealth that that colony should be temporarily exempt from the provision for
inter-state freetrade.

§ 401. "During the First Five Years."

The section as framed by the Convention was not limited to the event of Western
Australia joining the Commonwealth as an Original State. If she had joined at anj'
time within five years after the imposition of the uniform tariff, it would have operated

868 COMMENTARIES ON THE CONSTITUTION. [Sec. 96.

for the balance of that period. When the Commonwealth Bill was before the Imperial
Parliament, it was apparently taken for granted that this provision was framed on the
assumption that Western Australia would be an Original State, and as that event was
then doubtful, the words " if that State be an Original State " were inserted. Now that
Western Australia is an Original State, the amendment is immaterial.

§ 402. "Impose Duties of Customs."

The power so given to the Parliament of Western Australia is a power to supplement
the customs revenue collected in that State upon imports from abroad by a second tariflF
on goods " passing into that State " from the other States. Such duties, like other
customs duties, are to be collected by the Commonwealth, and will, under the provisions
of sec. 93, be credited to the State of Western Australia, and so go to increase, by the
whole amount of such duties, the share of the surplus payable to Western Australia.

§ 403. " But Any Duty so Imposed on Any Goods Shall

Not Exceed."

Subject to the conditions here laid down, the Parliament of Western Australia will
have full control, during the five year period, over every item of this inter-colonial tariff,
and may at any time amend it or repeal it if desired. The one condition is that no duty
on any article shall exceed in any year the specified proportion of the duty chargeable
on the same article under the West Australian tariff in force at the date of the imposition
of uniform duties.

§ 404. "If the Duty on Any Goods Under this

Section is Higher than the Duty Imposed by
the Commonwealth."

Without this provision, it might have happened in some cases that a preference
would be given to goods imported from abroad over similar goods produced within the
Commonwealth. To prevent this, it is pi'ovided that in such a case the duty collected
under the federal tai'iff shall be on the higher scale. The result is that, notwithstanding
sec. 51— ii., a federal law with respect to taxation may, in effect, discriminate between
the State of Western Australia and the rest of the Commonwealth.

Financial assistance to States.

96. During a period of ten years after the establishment
of the Commonwealth and thereafter until the Parliament
otherwise provides*^^ the Parliament may grant financial
assistance to any State^"*^ on such terms and conditions**^" as
the Parliament thinks fit.

Historical Note.— An objection raised both to the contribution basis and to the
population basis of distributing revenue was that they altogether ignored the needs of
the States, and would result in some States getting back more than they wanted, whilst
others would get back less. In fact, all the alarming forecasts of the need of an
excessive tariff had arisen from the assumed obligation of increasing the contributions of
the *' necessitous " States — an unfortunate epithet which, when first used, meant the
States to whom a high tariff was a necessity, but which was twisted by critics into a
supposed confession of bankruptcy. These considerations had led Air. R. M. Johnston,

5 405.]

FINANCE AND TRADE. 869

the Government Statistician of Tasmania, to propound an " Inopimeter Method," or basis
of distribution according to needs. " If there be any surplus to return let it be distri-
buted on the basis of the Inopimeter Method — that is, to distribute such surplus on the
ascertained proportion of the percentage which each State's loss of income caused by
abolition of the local tariff and excise bears to the corresponding aggregate loss of the
six colonies." (Federal Finance : Observations on the Difficulties of the Problem, R. M.
Johnston, 1897.) As a general system of distribution, this scheme had no chance of
adoption — the fear in Xew South ^\'ales being that it would be worked for the benefit
not of the neediest, but of the greediest States. However, there was a strong feeling that
there ought to be some scope for mitigating the strict severitj* of the mathematical basis
of distribution laid down in the Bill. Accordingly, at the Melbourne session, Mr.
Henr}- proposed the following clause: — "The Parliament may, upon such terms and
conditions and in such manner as it thinks fit, render financial aid to any State." This
was supported by a few members, but was generally objected to as being too intiefinite,
as making the Commonwealth a " rich uncle " for the States and casting a slur on their
solvency, as opening the door to continual applications for "better terms," and as
being a disastrous commentary on the efficiency of the financial clauses. It was
contended on the one hand, and stoutly denied on the other, that bj- necessary impli-
cation from the nature of the union the Commonwealth would have power to come to the
assistance of the States whenever necessary. A limitation to five years was suggested,
but eventually the clause was negatived. The proposals which then followed, by way of
amendments to the West Australian clause (see Xotes to sec. 95), were all based on the
Tasmanian idea of distribution according to needs, or "net losses," but thej- were all
rejected. (Conv. Deb., Melb., pp. 1100-22.)

Premiers' Conference, 1899. — In New South Wales there were forebodings of the
necessity, under the draft Bill of the Convention, for a high tariff— deduced sometimes
from the basis of distribution, sometimes from the Braddon clause. At the Premiers*
Conference the clause as it stands was inserted as a part of the financial adjustment ;
partly as a compensation to the smaller States for the amendment in the Braddon
clause, but chiefly to meet the difficulties that might be caused, in the first few years of
the uniform tariff, by the nnj'ielding requirements of the distribution clauses, and to
remove any possible necessity for an excessive tariff.

§ 405. " During a Period of Ten Years . . . and there-
after until the Parliament otherwise Provides."

These words are identical with the introductory words of sec. 87 (the " Braddon
clause "), where they were inserted — as this section was inserted — by the Premiers' Con-
ference of 1899. In this section, however, it is very hard to give them any meaning.
The phrase " until the Parliament otherwise provides " is used, everywhere except in this
section, in connection with some specific provision made by the Constitution — not in
connection with a power given to the Parliament. Its effect is to lower such provision to
the level of a mere law of the Federal Parliament, and to give the Federal Parliament full
jiower to deal with the whole question. In order to place the legislative power of the
Parliament in such cases beyond question, sec. 51 — xxx\n. provides that the legislative
power shall extend to " matters in respect of which this Constitution makes proWsion
until the Parliament otherwise provides." But here, the Constitution of itself makes no
specific pro\ision. It merely' empowers the Parliament to make a proWsion — and adds
that the power may be exercised for ten years, and thereafter "until the Parliament
otherwise provides." According to the grammatical implication, it would appear that
if the Parliament at any time after ten years " otherwise provides," it cuts away its
legislative power under the section altogether ; so that the Parliament, bj* passing a law,
can destroy its own power for the future. On the other hand, the close connection
which this clause has, historically, with the Braddon clause, makes it seem probable

870 OOMMEJTTARIES ON THE CONSTrTCJTCON. [Sec. 98.

that the Premiers intended that it should survive while the Braddon clause survived,
but no longer. 'J he one thing clear is that until the Parliament does otherwise provide,
the power will remain in force ; and therefore, as the Parliament is not likely to pass a
self-denying ordinance to diminish its own powers, this section may be considered, for
all practical purposes, as a permanent part of the Constitution.

§ 406. " Grant Financial Assistance to any State."

The interpretation of these very wide and general words is a matter of great
importance, and also of considerable difficulty ; and before discussing the words them-
selves, and their relation to the rest of the Constitution, it will be well to examine the
intentions of the framers. Although added to the Constitution at the Premiers' Con-
ference in 1899, the section is based on the clause proposed by Mr. Henry at Melbourne
(see Historical Note) empowering the Parliament to •' render financial aid to any State."
Probably Mr. Henry's proposal in its turn may be traced back to a suggestion by both
Houses of the Tasmanian Parliament, providing tliat "The Commonwealth may from
time to time lend to any State, on such terms and conditions as the Parliament may
prescribe, any sum or sums of money borrowed on the public credit of the Common-
wealth."

From the debate on Mr. Henry's proposal (Conv. Deb., Melb., pp. 1100-22) it is
clear that the mover and most of the speakers understood that assistance might be given
by an absolute vote out of revenue ; though Mr. Holder argued (p. 1113) that no such
gift would be possible because the revenue was all appropriated under the clauses dealing
with the distribution of revenue. Mr. Lewis claimed (p. 1112) that the clause would go
much further, and would "include the power of the Parliament to guarantee a loan to
a State, or to lend the money to a State, having raised it on its own security." The
only official explanation of the views of the Premiers on the clause as it stands is contained
in the report of their Conference, where they state that it is intended to give effect to
the opinion that ' ' power should be granted to the Parliament to deal with anj' exceptional
circumstances which may from time to time arise in the financial position of any of the
States." It seems clear, however, from Mr. Reid's subsequent speeches on the clause,
that he contemplated that there would be power, in an emergencj', to apply revenue to
this purpose. See, for instance, his speech on the Address in Reply in the Legislative
Assembly of New South Wales on 21st February, 1899.

" There is a new clause inserted next to the Braddon clause which gives the Common-
wealth Constitution a verj^ valuable feature of elasticity in connection with the finances.
As the Constitution stood, this might happen : Take Tasmania. A small amount of
money might be required by Tasmania from the Commonwealth for a limited time to
place her in the same position financially as slie was in before Federation ; but, under
the Bill as it stood, there M^as no power to come to the assistance of that or an}' other
colon}' in a necessity of that sort ; and coming to the assistance of such colonies during
this transitional period of finance would in itself be a valuable power on tlie part of the
Federal Treasurer, and all in the direction of making the taxes more reasonable — more
elastic That provision has been inserted, and I think it is a distinct improvement in
the Bill." (N.S. W. Pari. Debates, vol. 97, p. 48.)

That the section empowers the Commonwealth to guarantee loans of the States,
and to borrow money on the credit of the Commonwealth and lend it to the States, can
hardly be doubted. Any such operation would, or at least might, involve charges on
the revenue, in order to paj' interest and redeem principal, or make good the guarantee ;
and any such charges would, it seems, be included in the general expenditure of the
Commonwealth, and debited jier capita against the credits to the several States.

But does the section enable the Commonwealth to ease the inelasticity of the
distribution clauses by making absolute grants directly out of revenue ? It is hard to
see on what grounds this power can be denied ; though undoubtedly it is a power which
is not intended to be used, and ought not to be used, except in cases of emergency.
Such a grant would certainly be "financial assistance" of the moat direct and substantial
kind; and financial assistance of precisely the kind required to guard against the burden

§§406-407.] FIXAXCE AND TRADE. 871

of unnecessary taxation which has been prophesied as the ine\itablc result of the inelastic
pi-o\isions of the distribution clauses. It would in fact be, to a certain extent, a
recognition that, in cases of emergencj', the principle of distribution according to
contributions might be tempered in the direction of distribution according to needs.
The argument that there is no fund out of which to make such payments is fallacious.
If the Constitution authorizes expenditure for this purpose, it is " expenditure of the
Commonwealth" which can be made out of the Consolidated Revenue Fund, and debited
to the States in proportion to population under sec. 89.

A more serious difficulty is to construe the bearing of sec. 87 (the Braddon clause)
upon this provision. If a payment out of revenue, in aid of a State, is " expenditure
of the Commonwealth " within the meaning of sec. 89, is it, for the purposes of sec. 87,
to be taken out of revenues which may be applied to the expenditure of the Common-
wealth, or may it be taken out of the three-fourths of the net customs and excise
revenue which must be " paid to the several States ? " At first sight, it seems to come
equally well within either category ; to be paid to a State, in accordance with the
Constitution, and to be expenditure of the Commonwealth. But a closer consideration
of the general scope of sec. 87, as well as of its language, seems to lead to the conclusion
that payment to a State under this section does not fall within the balance which, under
section 87, "shall in accordance with this Constitution" be paid to the States. That
expression seems to refer to the "Ijalances" payable under section 89, and not to
include deductions which have already l>een made in calculating those balances.

If this construction be correct, the result is shortly as follows : — (I) Financial
assistance may be granted to a State out of revenue. (2) The amount so grantefl is
" expenditure of the Commonwealth" which is to be debited per capiYa against all the
States including the State to which the grant is made. (3) The Commonwealth
cannot make such grant out of the three-fourths of the net customs and excise revenue
which, under sec. 87, is to be paid to or on behalf of the several States.

To this it may be added that the section is intended as " the medicine, not the
daily food," of the Constitution ; and that it is not to supersede or render nugatory the
distribution clauses by allowing distribution according to the will of the Parliament.
The Braddon clause, so long as it remains in force, is an efficient check against abuse of
the financial assistance clause ; but the financial assistance clause will not necessarily
perish with the Braddon clause— though it may be that the Premiers' Conference meant
that it should.

§ 407. "On such Terms and Conditions."

Even without the express mention of terms and conditions, the Parliament, as the
party in whose discretion it is to either grant or refuse assistance, would have been able
to make its own terms. But though apparently superfluous, the words are not really
so. They help to place be\ond doubt the intention of the section, and to make it clear
that the discretion of the Parliament is absolute, and that no duty is imposed upon it
of giving assistance without demur and without enquiry, whenever assistance may be
asked. The section is not intended to diminish the responsibility of State Treasurers,
or to introduce a regular system of grants in aid. Its object is to strengthen the financial
position of the Commonwealth in view of possible contingencies, by affording an escape
from any excessive rigidity of the fiusmcial clauses. It is for use as a safety-valve, not
as an open vent ; and it does not contemplate financial difficulties, any more than a
safety-valve contemplates explosions.

872 COMMENTARIES ON THE CONSTITUTION. [Sec. 97.

Audit.

97. Until the Parliament otherwise provides*"^, the laws
in force in any Colony which has become or becomes a State
with respect to the receipt of revenue and the expenditure of
money on account of the Grovernment of the Colony, and the
review and audit of such receipt and expenditure, shall apply
to the receipt of revenue and the expenditure of money on
account of the Commonwealth in the State in the same
manner as if the Commonwealth, or the Government or an
officer of the Commonwealth, were mentioned whenever the
Colony, or the Government or an officer of the Colony, is
mentioned.

Canada. — . . . subject to be reviewed and audited in such manner as shall be ordered by
the Governor-General in Council until the Parliament otherwise provides. — B.N. A. Act,
1867, sec. 103.

Historical Note. — This clause, in substantially the same form, was in the Bill of
1891. At the Adelaide Session, 1897, the draft of 1891 was adopted verbatim. At
Melbourne, after the fourth Report, verbal amendments were made.

§ 408. " Until the Parliament Otherwise Provides."

This section merely makes temporary provision as to the review and audit of the
federal accounts until such time as the Federal Parliament passes an Act for that
purpose. It provides that, until the Parliament deals with the matter, the audit laws
of each State shall apply, mutatis mutandis, to the receipt of revenue and the expenditure
of money in that State. These Acts are : — in New South Wales, the Audit Act, 1898 ;
in Victoria, the Audit Act, 1890 ; in Queensland, the Audit Act, 1874 ; and Amend-
ment Acts, 1890 and 1895 ; in South Australia, the Audit Act, 1882, and Amendment
Act, 1895; in Western Australia, the Audit Act, 1891 ; in Tasmania, the Audit Act,
1888, and Amendment Acts, 1890 and 1894.

Trade and commerce includes navigation and State railways.

98. The power of the Parliament to make laws with
respect to trade and commerce extends*''^ to navigation and
shipping^^", and to railways the property of any State*^^

Canada. — The exclusive legislative authority of the Parliament of Canada extends to . . ■

(10) Navig-ation and shipping. — B.N. A. Act, 1867. sec. 91.
In each Province the Legislature may exclusively make laws in relation to . . . (10) local
works and undertakings, other than such as are of the following classes : —

(a) Lines of steam or other ships, railways, canals, telegrai)hs, and other works and
undertakings connecting the Province with any other or others of the Provinces,
or extending beyond the limits of the Province.
(6) Lines of steamships between the Province and any British or foreign country.—
Id. sec. 92.

Historical Note. — In the Bill of 1891 "Navigation and Shipping" was included
among the subjects to which the legislative power of the Federal Parliament extended.

At the Adelaide Session, 1897, the Draft of 1891 was followed. None of the
Legislatures made any suggestion, and at the Sydney Session the sub-clause was passed
without discussion.

§§409-410.] FINANCE AND TRADE. 873

At the Melbourne Session, upon the discussion of the " railway rate" clauses, Sir
George Turner proposed a new clause, of which the first part ran : — " The Parliament
niaj' make laws to provide for the execution and maintenance upon railways within the
Commonwealth of the provisions of this Constitution relating to trade and commerce ;"
and the second part empowered the Parliament to prohibit unjust preferences (see Hist.
Note to sec. 101). The long debate which followed was chiefly on the question of
preferences ; but Mr. Barton pointed out that the Parliament already had power to
execute federal laws. The clause was carried by 25 to 16. (Conv. Deb., Melb., pp.
1372-1408.)

On the second recommittal Mr. Barton secured the recasting of Sir Geo. Turner's
clause in a declaratory form, to pro\-ide that " The power of the Parliament to make
laws with respect to the regulation of trade and commerce shall be taken to extend to
railways the property of any State."' The object of substituting the declaratory for the
enabling form was to prevent any limitation of the trade and commerce power being
implied ; and the object of the provision itself was to remove doubts as to whether State-
o^vned railways were subject to the trade and commerce power. (Conv. Deb., Melb., pp.
2386-90.)

After the fourth Report the Federal control of " navigation and shipping" was for
similar reasons expressed in a declaratory form by being omitted from the " legislative
power " clause and inserted in its present position. Other drafting amendments were
also made, and the efifect of the clause was finally discussed. (Conv. Deb., Melb., pp.
2449-50.)

§ 409. " The Power of the Parliament . . . Extends."

This section is purely declaratory ; it does not purport to give any new power to the
Parliament, but merely to authoritati%-ely explain and interpret the extent of the power
already given by sec. 51 — i. It is in effect a definition clause, declaring that trade and
commerce includes traffic by water as well as by land, and also includes traffic on railways
owned by the Government of a State.

The power of the Parliament to make laws with respect to trade and commerce is
expressly limited, by sec. 51, to "trade and commerce with other countries, and among
the States." It follows that the application of that power to navigation and shipping,
and to State railways, is limited in the same way, and does not extend to shipping or
railways which are employed in the purely domestic traffic of a State. In this respect
the powers defined in this section resemble the powers which in the United States are
held to flow, without any such definition, from the trade and commerce power itself.
(Cooley 1-. Port Wardens, 12 How. 299.) Less closely they resemble the powers given
in Canada ; for although s. 91 of the British North America Act gives the Dominion
exclusive power to legislate in respect of " navigation and shipping," with no limitation
to foreign and inter-provincial trade, yet some such limitation is subsequently imposed
by sec 92 of that Act.

§ 410. " Navigation and Shipping."

In the United States, it has been held that the power to regulate ti-ade and com-
merce necessarily implies and includes the power to regulate navigation and shipping, as
a part of the means by which trade and commerce are carried on ; and that such regula-
tion comprehends the power to prescribe rales in conformity with which navigation
must be carried on. (Cooley v. Port Wardens, 12 How. 299.) The commerce power not
onU- extends to the goods transported, but " also embraces within its control all instru-
mentalities by which that commerce may be carried on, and the means hy which it may
be aided and encouraged." (Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196.)
Accordingly vessels, as well as the articles which they bring, are subject to regulation.
(The Brig Wilson v. United States, 1 Brock, 423 ; cited Baker, Annot. Const, p. 20. See

874 COMMENTARIES ON THE CONSTITUTION. [Sec. 98.

p. 540, supra. ) The express declaration in this Constitution that the power to regulate
trade and commerce extends to navigation and shipping incorporates the effect of the
American decisions, and puts their applicability bej^ond doubt.

A law providing for the recording of any mortgage, hypothecation, or conveyance of
a ship has been held in the United States to be a regulation of commerce, and therefore
within the power of Congress. ( White's Bank v. Smith, 7 Wall. 646. ) But " the right of
ferriage which a State grants upon a boundary stream, it is said, is in respect of the
landing and not of the water. The right of navigation does not authorize appropriation
of the banks of the river, or the receipt of tolls for transporting passengers across it."
(Prentice and Egan, Commerce Clause, p. 159.)

The power to regulate navigation covers not only goods, vessels, and carriers, but
also the liighway upon which navigation is carried on. "The power to regulate commerce
is the basis of the power to regulate navigation and navigable waters and streams."
(The LoUawanna, 21 Wall. 558, where it was decided that Congress has power to
establish a lien on vessels in favour of material men. ) For the federal power of control
over navigable rivers, see notes to sec. 100.

It does not follow from this section that the Commonwealth can have no authority
over navigation and shipping except what flows from the power to regulate commerce ;
shipping may be affected and controlled, in some cases, by laws within the other powers
of the Parliament. For instance, in the United States it has been held that the extension
of the admiralty jurisdiction over all the navigable waters of the United States
necessarily involved and implied an extension of the legislative power of Congress. " It
was not possible that the body of (maritime) law should remain for ever unalterable, nor
that such changes as were necessary should be introduced only by judicial decisions.
It was clear, however, that no legislative power would be adequate unless it
was as extensive as the admiralty jurisdiction given to the courts. The necessities of
the case, therefore, required legislation by Congress, and this legislation the courts finally
.supported. The federal legislative power, the court said, ' is not confined to the
boundaries or class of subjects which limit and characterize the power to regulate
commerce ; but, in maritime matters, it extends to all matters and places to which the
maritime law extends.' " (Prentice and Egan, Commerce Clause, p. !i7. He Garnett, 141
U.S. 1.)

"The jurisdiction of the United States over transportation by water and over the
waters themselves is derived, therefore, not only from the commerce clause, but also
from the admiralty powers of the general Government, which includes the control of
national waterways and of national vessels. Federal jurisdiction over these subjects is,
therefore, far more extensive than its jurisdiction over carriers and transportation by
land." (Prentice and Egan, Commerce Clause, p. 98.)

The corresponding provision in the British North America Act (s. 91) is a gift of
exclusive legislative authority to the Dominion Parliament in respect of navigation and
shipping, without any limitation to foreign and inter-provincial commerce. The gift is,
however, qualified in sec. 92, which gives the Provinces exclusive power with respect to
local works and undertakings.

" This conferred on the Parliament of Canada legislative authority over all matters
occurring in Canadian waters within the subjects Navigation and Shipping, and its
co-operation was required to give effect to the same rules of navigation as has (■«c) been
used in England. (See Eliza' Keith, 6 April, 1877; 3 Quebec L.R. 143.) There, the
Canadian Act of 1868, 31 Vic. c. 58, which provided that wheie two ships were each to
blame for a collision in Canadian waters, both were precluded from recovering its
damages, was held to be operative, although the Admiralty rule which divides the loss
prevails in England, and has been applied in a case of collision on Canadian waters in an
appeal to the I'rivy Council." (Wheeler, Confed. Law of Canada, pp. 70-71.)

§ 411. " Railways the Property of any State."

In the United States it has been consistently held that railways arc public Ingh-
ways, and subject as such to control by Congress under the trade and commerce power.
(Cherokee Nation v. Southern Kansas R. Co., 135 U.S. M\ ; Smyth v. Ames, llj9

^4lJ.] FINANCE AND TRADE. 875

U.S. 466.) In the United States, however, as in England, the railways are eonstructe«J
and owned by companies or individuals. In Australia they are, with few exceptions,
constructed and owned by the States ; and a doubt arose in the Convention, whether
the commerce clause by itself would be construed to extend the authority of the
Commonwealth to the Government railways of the States. This express provision
removes all doubts on that head.

That ' ' railways the propertj' of any State " are the only railways here mentioned
is due to the fact that those are the only railwa\s as to which there could be any doubt,
■and as to which it was therefore necessar}- to make an express declaration. That the
authority of the Commonwealth extends to private railways— so far as they are engaged
in inter-state or foreign commerce— is taken for granted.

Uniler the federal power to acquire and construct railways, it is probable that rail-
ways owned by the Commonwealth will come into existence. That such railway's will
be subject to control bj- the Federal Parliament is obvious ; but the Commonwealth in
working such railways will itself be subject to the stringent provisions of sec. 99, for-
bidding the Commonwealth to give preference to any State over any other State. \See
Xotes to that section.)

The extent of the federal power over State railways is limited by other provisions
of the Constitution. Thus the power given to the Commonwealth by sec. 51 — xxxiii.,
xxxiv. , to acquire the railways of any State with the consent of the State, and to
constriict railways in a State with the consent of the State, would seem by implication
to exclude the exercise of any such power without the consent of the State. Apart from
these provisions, it is by no means clear that such a power woidd not have existed.
Thus in the United States it is contended by writers of repute — and the contention
rests upon principles settled by judicial authority — that Congress under the wide scope
of the commerce clause has power both to acquire and to construct railways, and to
create a great national corporation with a monopoly of the railroad business. (See
Lewis, National Consolidation of the Railways of the U.S., pp. 282-304.) That writer
maintains that the cases of McCulloch v. Maryland, 4 Wheat. 316, and Osbom r. U.S.
Bank, 9 Wheat. 738, establish the principle that "Congress has authority' to create a
great national corporation to carry out any powei-s given hy the Constitution to the
Federal Government."

A further limitation of the federal power over State railways is contained in sees.
101 and 103, b}' which the powers of the Parliament as to preferences and discrimina-
tions are defined. (See Xotes to those sections.)

Commonwealth not to give preference.

99. The Commonwealth shall not"^, by any law or
regulation of trade, commerce, or revenue*^^, give preference*'*
to one State or any part thereof"^ over another State or any
part thereof.

UsiTED States.— No preference shall be given, by anj- regulation of commerce, or revenue, to
the ports of one State over those of another.— Const. Art. 1, sec. 9, sub-sec. 5.

Historical Note. — The Clause in the Bill of 1891 provided that " Preference shall
not be given by any law or regulation of commerce, or revenue, to the ports of one part
of the Commonwealth over those of another part of the Commonwealth." A second
paragraph (also from the United States Constitution) that vessels bound to or from one
port of the Commonwealth need not enter, clear, or pay duty in another port, v as sti-uck
out in Committee. (Conv. Deb., Syd., 1891, pp. 833-p.)

Adelaide StJision, 1897.— At Adelaide, the preference clause was adopted almost in
the words of 1891, but having appende<l to it a provision (which had previously formed

876 COMMENTARIES ON THE CONSTITUTION. [Sec. 99.

a separate clause ; see Hist. Note to sec. 92) that federal or .State laws derogating fronv
freedom of inter-state trade should be void. There was little objection raised to the-
prohibition of preferences by the Commonwealth, the debate being almost wholly oa
preferences by States. (Con v. Deb., Adel., pp. 1070-85.)

Melbourne Session, 1S9S.— At Melbourne, Mr. Barton proposed the clause
in a sweeping form, providing that all Federal or State laws giving a preference
to one State over another should be void. The debate again turned almost wholly on
preferences by States. (See Hist. Note to sec. 102.) Finally Mr. Barton (Debates^
pp. 1319, 1337) proposed the clause in its present form, forbidding the Commonwealth
to give preferences. After various amendments dealing with State preferences had
been dealt with, the clause was carried. (Conv. Deb., Melb., pp. 1250-1370, 1409-1506 ;
supra, p. 199.)

§ 412. "The Commonwealth Shall Not."

This prohibition is directed not only against the Parliament of the Commonwealth,
but against the Commonwealth itself — in which word is included every department of
the public service of the Commonwealth.

A law which infringes this prohibition will be beyond the scope of the Constitution,,
and therefore unconstitutional and void. It may be assumed, however, that the courts,
following the established rules of construction, will not hold any law to be void upon
mere suspicion that it gives a preference, or where there is any doubt upon tlie matter.

§ 413. "By any Law or Regulation of Trade, Commerce,.

or Revenue."

The corresponding words of the United States Constitution, are " by any regulation
of commerce or revenue."

Law or Regulation. — "Regulation " is a word which may be used in a general or a
restricted sense. In its widest meaning it denotes any prescribed rule or order, and
therefore includes every law ; as, for instance, it does in the words of the United States
Constitution quoted above. More particularly, it is often used to denote rules or
regulations prescribed by the Executive under the authority of an Act of Parliament.
Sucli rules, when within the scope of the authority given, have the force of law, and are
in fact laws in every sense of the term. But the word " regulation " also includes
purely administrative regulations, not made under the direct authority of an Act of
Parliament, and not being laws in the proper sense of the term. The words ' law or
regulation, ' taken together, are wide enough to include every rule or order prescribed
by the Parliament or by any department of the Covernment of the Connnonwealth.

"Regulation" does not necessarily involve restriction; a regulation may be
permissive.

" Regulation is not necessarily the imposition of a burden. The Federal statutes,
for instance, authorize every railroad companj^ in the United States, whose road i(i
operated by steam, to carry passengers and property from State to State ; to receive
payment therefor, and to connect with roads of other States. This statute is a regulation
of commerce made by Congress under the authority of the commerce clause, and yet is
permissive only and imposes no burden." (Prentice and Egan, Conmierce Clause,
pp. 188-9.)

" To regulate commerce has often been defined as ' to prescribe the conditions under
which commerce shall be conducted.' Such a definition as this clearly brings within its
scope all regulation of instrumentalities as well as acts of commerce. It is not surprising,
therefore, that this definition has been often qualified by the general statement that ' it
is not everything that affects commerce that amounts to a regulation of it within the
meaning of the Constitution.'" (Prentice and Egan, p. 189 ; Henderson v. Mayor of New
\'ork, 92 U.S. at p. 270; Munn v. Illinois, 94 U.S. 135.)

§§ 413-414.]

FINANCE AND TRADE. 877

Taxation of commerce is regulation of commerce — and indeed such taxation is often
imposed with a \-iew to regulation rather than with a view to revenue. (See Prentice
and Egan, p. 198.)

Trade, Commerce, ok Revenue. — This section is a limitation upon two powers of
the Commonwealth : the trade and commerce power, conferred by sec. 51— i., and the
revenue power, contained chiefly in sec. 51 — ii., but also incident to many other legislative
powers of the Commonwealth. "Law or regulation of revenue "' includes laws which
deal with the raising of revenue from any source whatever — whether by taxation, by
tines or pecuniary penalties, or by fees for licenses, fee for services, &c. The fact that,
under sec. 54, bills appropriating such penalties or fees are not to be taken, for the
purposes of that section, to "appropriate revenue or moneys,'' does not mean that
penalties and fees are not revenue— and indeed rather implies the contrary.

As regards taxation, the prohibition against preferences adds little, if anything, to
the provision in sec. 51 — i., that taxation laws must not "discriminate between States
or parts of States." But the use of the wider word " revenue" extends the prohibition
to all revenues other than those arising out of taxation, and prevents any preference
being given by the Commonwealth in respect of any revenue charges whatsoever ; such
as fees for postal, telegraphic, and telephonic services, or rates on railways of the
Commonwealth.

This section, therefore, extends to all laws and regulations of trade, commerce, and
revenue, the condition which is elsewhere imposed with regard to laws dealing with
taxation— viz., that they shall not discriminate between States or parts of States. It is
a limitation upon the power of Parliament to regulate trade, commerce, and revenue,
and is intended to prevent discriminations in favour of one State against others.
(Passenger Cases, 7 How. 28.3.)

§ 414. "Give Preference."

The object of this prohibition is to prevent federal favoritism and partiality In
commercial and other kindred regulations. As any law which gives a preference in
contravention of this section >vill be unconstitutional, and therefore void, it becomes
highly important to examine the meaning of the word.

A preference is a discrimination considered in relation to the person or State in
whose favour siich discrimination is. (See Note on " Preference or discrimination,"
§ iSO, infra.) The prohibition here is absolute and without qualification. In the case
of preferences by the States there is merelj' a power given to the Parliament to forbid
such preferences as are undue and unreasonable, or unjust to any State ; in the case of
the Commonwealth, every preference whatever is forbidden by the Constitution itself,
irrespective of injustice or unreasonableness.

A preference involves a departure from the standard of equality ; but it is not
always easy to determine what that standard is. Where, in anj' two cases that may be
compared, there is exact similarity of all material circumstances, any departure from
equality of treatment is easily detected. But exact similarity of circumstances seldom
occurs ; and in comparing dissimilar circumstances it must often 1^ difficult to determine
what constitutes inequality of treatment, i.e., a preference. Where the circumstances
are dissimilar, a preference may arise either because the dissimilarity of treatment is
excessive, or because the similarity of treatment is excessive. With regard to taxation,
perhaps no serious ditficulty is likely to arise ; but with regard to charges for services,
equal charges for difl'erent services may cause as great inequality as unequal charges for
similar services. For instance if on a railway line there are three points. A, B, C, in
that order, a rate for the long haul A C may be preferential by being lower than, or
equal to, the rate for the short haul A B ; or the rate for the short haul A B may be
preferential by falling disproportionately short of the rate for the long haul A C.

The Constitution prescribes no definite test of etjuality under dissimilar circum-
stances. Cost of service will presumably be a main element ; but if it were the only

878 COMMENTARIES ON" THE CONSTITUTION. [Sec. 99.

element, it would lead to the illegality of "group rates" on railways of the Common-
wealth— i.e., equal rates from one point to all points within a " group" or " zone." It
would also be inapplicable to postage rates, where equality of charges — even where tlie
cost of service varies largely— is almost essential, and where anj' attempt to proportion
the charge to tlie cost of service is both impracticable and undesirable. It is submitted
that in deciding what is and what is not a preference the following principles should l)c
applied : —

(1.) The section should be construed in a broad and liberal manner, with especial
reference to the evil which it is intended to prevent, viz., arbitrary discriminations
between States or localities. The rule that no law of the Parliament m ill be held invalid
unless it appears clearly to infringe the Constitution requires that only a plain and
substantial preference should justify judicial interference.

(2.) In determining what constitutes equality of treatment, recognition should be
given to the practical necessities of the case, and to all the sound administrative or
business principles involved. The cost of service should be a main element, but should
not exclude other considerations ; such as the expediency of a zone sj'stem on railway's,
or the expediency of a uniform charge for postal and telegraphic services.

It seems, in short, that though the section contains no such words as " undue or
unreasonable," but prohibits preferences in general, yet in order to arrive at a decision
as to what is a preference, the question of what is due and reasonable is to a certain
extent involved. If a difference of treatment is arbitrary, or if its purpose is to
advantage or prejudice a locality, it is undue and unreasonable, and is accordingl}' a
preference. If on the other hand the difference of treatment is the reasonable result of
the dissimilarity of circumstances - or if it is based on recognized and reasonable
principles of administration - it is no preference. The intention and the effect must
both be looked to in order to decide whether a preference exists ; and in neither inquiry
can reasonableness be ignored.

This does not mean that the words " undue or unreasonable " are to be read into the
section. On the contrary, their absence would seem to materially increase its stringencj'.
Reasonableness must be taken into consideration in ascertaining whether a preference
exists ; but a preference, though ascertained by that test to exist, need not necessarily
be an unreasonable preference.

Preferences within the meaning of this section are not confined to fiscal regulations.

" We can easily conceive that, if the spirit of sectionalism ever should take posses-
sion of Congress, the dominant section might devise many little petty annoyances for
boats entering the harbours of the other section which would amount to an unjust
preference of the ports of the former. Tlie mere improvement of a particular harbour,
the clearing of the navigation of a river which involves the altering of its channel (Soutli
Carolina v. Georgia, 93 U.S. 4), the erection of a bridge which obstructs navigation
(Pennsylvania v. Wheeling Bridge Co., 18 How. 421) — all these, while they may
incidentally benefit one port more than another, are not preferences within the mean-
ing of the prohibition. The people, in adopting the Constitution, intended to stop
forever one State requiring exactions from the people of another for its own peculiar
benefit ; but they never intended to prevent the federal Government for the good of all
the States from luidertaking public works in a particular locality." (Lewis, Federal
Power over Commerce, pp. 20-21.)

§ 415. "To one State, or any Part thereof."

The corresponding words of the United States Constitution arc " to the ports of
one State over those of another." At the time when that Constitution was framed,
navigation was the onlj' means of carriage on a large scale, and the prohibition against
preferences to ports seemed, to the Convention of 1787, to cover the whole field of
necessary commercial regulaticm. Prentice and Egan (Commerce Clause, p. 306>
suggest that —

"It is probable tiiat the construction which will be given to the clause will be in
accordance with this broad purpose. Freedom of transportation fron) conflicting.

§415.] FINANCE AND TRADE. 879

discriminating, and burdensome restrictions was the purpose of the Constitution ; and
while the language employed was almost necessarily such as referred to the means of
transportation then in existence and within the knowledge of the Convention, neverthe-
less the operation of the Constitution is not confined to the instrumentalities of
commerce then known, but keeps pace with the progress of the country, and is adapted
to new developments of time and circumstance. Within a hundred years the means of
transportation has so changed that the commerce among the States conducted by land is
more important than that conducted by water. Provisions of the Constitution which at
first were applied onlj' to navigation may therefore now be applied to railways, as in
the case of the clause which forbids the States from laying any duty of tonnage ; and
the same view maj' also be taken of the preference clause."

In this section the scope thus contended for has been definitelj- expressed ; and the
wortls cover all commerce, whether bj- land or sea.

The preferences prohibited are preferenc-es to localities. The other two kinds of
preferences — preferences to particular persons, or to particular classes of traffic (see
Note, § 430, infra) are not mentioned. Of course, however, a preference to a locality
consists of a preference to persons or goods in that locality ; and accordingly it would
seem that a preference to particular persons or classes of traffic — even though no locality
were expressly mentioned— might, if it specially favoured any State or part of a State
against another State or part of a State, be within the section.

It is to be noticed also that a preference, to come within this section, must not onU'
be a preference to one locality over another, but must be a preference to a locality in one
State over a locality in another State. Discriminations between parts of the same State
are not provided against by this section. The purpose is to safeguai-d the interests of
the States as against one another, by prohibiting inter-state preferences. The section is
" e\'idence of the intention of the framers of the Constitution to protect the freedom of
commerce from the selfish interference of a State, through its influence in the National
Government." (Lewis, Federal Power over Commerce, p. 20.)

Nor abridge right to use water.

100. The Commonwealth shall not*^^, by any law or
regulation of trade or commeree*^^, abridge the right of a State
or of the residents therein"^ to the reasonable use"^ of the
waters of rivers*-" for conservation or irrigation*"\

Historical Note. — The only mention of rivers in the Bill of 1891 was in the clause
enumerating the legislative powers of the Federal Parliament, which contained a sub-
clause " River navigation with respect to the common purposes of two or moi^e States or
parts of the Commonwealth." (Conv. Deb., Syd., 1891, pp. 689-92 ; see p. 138, supra.)

Adelaide Sennwi, 1897. — The sub-clause as proposed by the Constitutional Committee,
and embodied in the first draft at Adelaide, empowered the Federal Parliament to
legislate as to " The control and regulation of navigable streams and their tributaries
within the Commonwealth and the use of the waters thereof." The debate is summarized
at pp. 174-6, mipra. The clause was ultimateh' cut down to "The control and regula-
tion of the navigation of the River Murray, and the use of the waters thereof, from
where it first forms the boundary between Victoria and New South Wales to the sea."
(Conv. Deb., Adel., pp. 794-829.)

Melbourne Session, 1898. — Both Houses of the South Australian Parliament had
proposed to extend the clause — the Assembly to all the tributaries of the Murray, and the
Council to the rivers Darling, Murrumbidgee, and Lachlan. The result of the first debate
(see pp. 194-6, sttpra) was that after a number of amendments had been proposed and
rejected, the sub-clause was struck out altogether (Debates, p. 480), and all proposals

880 COMMENTARIES ON THE CONSTITUTION. [Sec. 100.

made in substitution for it were defeated ; the question of river conti'ol being thus left,
as in the United States, to the operation of the " trade and commerce " power. (Conv.
Deb., Melb., pp. 31-150, 376-642.)

On the second recommittal (see pp. 196-7, supra) Mr. Glynn moved an addition to
the " trade and commerce " sub-clause, defining " navigable rivers " on the broad basis
of American decisions ; but the question was eventiially postponed until after the settle-
ment of the navigation poAver. The New South Wales representatives feared that the
paramountcy of the federal navigation power might injure State rights of water conserva-
tion and irrigation; and Mr. Carruthers proposed to add to the " Is' avigation and
Shipping " sub-clause a proviso that the use of the river waters for na\-igation should be
subordinate to conservation in the States. This was eventually withdrawn in favour of
Mr. Reid's amendment to the effect that the navigation power should not "abridge the
rights of a State or its citizens to the use of the waters of rivers for conservation and
irrigation." Sir John Downer's amendment to add "reasonable" before " use " was
carried, and the sub-clause as amended was agreed to. (Conv. Deb., Melb., pp. 1947-90.)
After the fourth Report, it was amended to stand as a separate clause.

§ 416. " The Commonwealth shall Not."

(See Note on the same words in the preceding section, § 412, supra ) This section is
a further limitation of the trade and commerce power. The necessity for the provision
arose out of the twofold importance of the rivers — as highwa3'S of inter-state commerce,
and as channels and reservoirs for the water which is essential for the development of
the land. In the event of any conflict between these two purposes, the power of the
Federal Parliament to regulate navigation would have prevailed absolutely against any
claims by the States to the use of the water, and the object of this section is to limit the
paramountcy of the navigation power so far as it may interfere with " the reasonable
use " of the waters for State purposes.

The river systems of Australia bear a very close analogy, in many respects, to thoso
of the arid portion of the United States, in which the rainfall is not sufficient for the
production of the crops, and which covers about two-fifths of the whole area of the
United States.

" Here the paramount interest is not navigation of the streams, but the cultivation
of the soil by means of irrigation. Even if, by the expenditure of vast sums of money in
straightening and deepening the channels, the uncertain and irregular streams of this
arid region could be rendered to a limited extent navigable, no important public purpose
would be subserved by it. Ample facilities for transportation, adequate to all the
requirements of commerce, are furnished by the railroads, with which these comparatively
insignificant streams could not compete. But, on the other hand, the use of the waters
of all these streams for irrigation is a matter of the highest necessity to the people
inhabiting this region, and if such use were denied them, it would injuriously affect tlieir
business and prosperity to an extent that would be an immeasurable public calamity."
(United States v. Rio Grande Dam and Irrigation Co., New Mexico, 51 Pac. Rep. 674 ;
cited Prentice and Egan, pp. 116-7.)

In these arid regions difficulties arose not only between the States, but between
higher and lower riparian owners in the same State. The riparian common law of
England, which required every riparian owner to permit the flow of the water
undiminished in quantity and unimpaired in quality, had grown up under totally
different conditions, and was found inapplicable to the circumstances of the arid
regions.

" Notwithstanding the unquestioned rule of the common law in reference to the
right of a lower riparian proprietor to insist upon the continuous flow of the stream as
it was, and although there have been in all the western States an adoption or recognition
of the common law, it was early developed in their history that the mining industry in
certain States, the reclamation of arid lands in others, compelled a departure from the
common law rule, and justified an appropriation of flowing waters Doth for mining
purposes an<l for the reclamation of arid lands, and there has come to be recognized in
tliose States, by custom and by State legislation, a different rule — a rule which permits.

§§416-^17.] FINANCE AND TRADE. 881

under certain circumstances, the appropriation of the waters of a flowing stream for
other than domestic purposes." (United States v. Rio Grande Dam and Irrigation Co.,
174 U.S. at p. 704.)

But though each State of the American Union may, as between its own citizens,
regulate the right to use the waters of rivers, the rights of the States are subject to the
paramount power of Congress with respect to navigation. Thus in 1890, Congress
passed a comprehensive Act prohibiting the creation of any unauthorized obstruction to
the na^■^gable capacity of waters over which the United States have jurisdiction ; and
under this Act it has been held that if the navigability of a navigable stream is
substantially affected by impounding the waters of a non-navigable tributary — even
though such tributary be wholly within one State — the Federal Government has power
to interfere. When proceedings are taken by the United States for that purpose,

"It becomes a question of fact whether the act sought to be enjoined is one which fairly
and directly tends to obstruct (that is, to interfere with or diminish) the navigable capacity
of a stream. It does not follow that the courts would be justified in sustaining any
proceeding by the Attornej'-General to restrain any appropriation of the upper waters of
a navigable stream. The question always is one of fact, whether such appropriation
substantially interferes with the navigable capacity within the limits where navigation
is a recognized fact. In the covu"se of the argument this suggestion was made, and it
seems to us not unworthy of note, as illustrating this thought. The Hudson River runs
within the limits of the State of New York. It is a navigable stream and a part of the
naWgable waters of the Unitefl States, so far at least as from AUiany southward. One
of the streams which flows into it and contributes to the volume of its waters is the
Croton River, a non-navigable stream. Its waters are taken by the State of New York
for domestic purposes in the city of New York. Unquestionably the State of New York
has a right to appropriate its waters, and the United States may not question su';h
appropriation, unless thereby the navigability of the Hudson is disturbed. On the other
hand, if the State of New York should, even at a place above the limits of navigabilitj',
by appropriation for any domestic purposes, diminish the volume of waters which, flowing
into the Hudson, make it a navigable stream, to such an extent as to destroy its
navigability, undoubtedly the jurisfliction of the National Government would arise, and
its power to restrain such appropriation be unquestioned : and vvithin the purview of
this section it would become the right of the Attorney-General to restrain such
proceedings." (United States v. Kio Grande Dam and Irrigation Co., 174 U.S. at
p. 709.)

The above case was decided in October, 1898, after the Convention had finished its
sittings : but the principles on which the decision is ba.sed were already well understood,
and it was with the view of modifying to some extent the application of those principles
that this section was framed. Under this Constitution the mere fact that navigability
is substantially affected, or even destroyed, does not enable the Commonwealth to re-
strain the use of the water by a State or its residents unless such use is unreasonable.

§ 417. " By any Law or Regulation of Trade or
Commerce."

(See Note to similar words, § 413 tsupra, § 427 infra.) The power of the Parliament
to make laws with respect to trade and commerce extends to navigation and shipping
(sec. 98), and therefore to navigation upon rivers. That it extends not only to shipping,
but to the highways themselves upon which the shipping is carried on, is expressly
recognized by this section, which imposes a limitation on the Federal control of such
highways ; and it remains to discuss the extent of this power.

NA^^GABLE Wateks of the Commonwealth. — Incident to the power to make laws
in respect of navigation with other countries and among the St.ates, is a power of control
over all waters upon which such navigation may be carried on —which are, in fact,
navigable for the purposes of inter-state and foreign commerce. In the Convention,
there was some discussion, in connection with the words " navigable " and " navigability."
which occurred in some proposed amendments (see Con v. Deb., Melb. , pp. Ill, 112,
409, &.C.), whether navigability would be intei-preted according to the English decisions
— which make the ebb and flow of the tide the test of navigability, marking the line
56

882 COMMENTARIES ON THE CONSTITUTION. [Sec. 100.

where prerogative of the Crown ends and private ownership of the river-bed begins— or
according to American decisions, which make actual capacity for navigation the test.
As the Constitution stands, however, the woi'd " navigable" does not occur. We have
only to deal with "navigation ;" and in discussing the extent of the jurisdiction with
regard to navigation, we are free to use the word " navigable," not in the artificial sense
of the English decisions, but in the natural sense which has received statutory and
judicial recognition in America — a sense which it is convenient to adopt, because the
area of federal jurisdiction over rivers in the United States has for the most part been
decided in connection with the words "navigable waters of the United States" in
Federal statutes. It will be viseful to trace those decisions.

In the Daniel Ball, 10 Wall. 557, at p. 563, Mr. Justice Field, delivering the opinion
of the Court, said : —

" The doctrine of the common law as to the navigability of waters has no application
in this country. Here the ebb and flow of the tide do not constitute the usual test, as
in England, or any test at all, of the navigability of waters. There no waters are
navigable in fact, or at least to any considerable extent, which are not subject to the
tide, and from this circumstance tide water and navigable water there signify substantially
the same thing. But in this country the case is widely different. Some of our rivers
are as navigable for many hundreds of miles above as they are below the limits of tide
water, and some of them are navigable for great distances by large vessels, which are
not even afTected by the tide at any point during their entire length. A diftereiit test
must therefore be applied to determine the navigability of our rivers, and that is found
in their navigable capacity. Those rivers must be regarded as public navigable rivers in
law which are navigable in fact, and they are navigable in fact when they are used or
are susceptible of being used in their ordinary condition as highways for commerce, over
which trade and travel are or may be conducted in the customary modes of trade and
travel on water."

In The Montello, 11 W^all. 411, it was held that if a river is not of itself a highwa}''
for commerce with other countries, or does not form such highwaj' by its connection
with other waters, and is only navigable between different places within the same State,
then it is not a navigable water of the United States, but only a navigable water of the
State, and subject to the exclusive jurisdiction of the State. And see Lake Shoi'e and
Michigan R. Co. v. Ohio, 165 U.S. at pp. 367-8, where a doubt was expressed whether
all navigable waters, even though wholly within a State, are " waterways of the United
States. " These decisions are upon the words of American statutes. It is clear, however,
that inter-state commerce, wherever found, is subject to federal control, and that
Parliament could legislate in respect of commerce upon the navigable waters of a State,
if such commerce came from, or was destined for, other States.

In The Montello, 20 Wall. 430, it was said that navigability does not depend on the
mode of navigation, but upon whether the river in its natural state is such that it affords
a channel for useful commerce. " It is not, however, as Chief Justice Shaw said (21
Pickering, 344), every small creek in which a fishing skiff or gunning canoe can be made
to float at high water which is deemed navigable, but, in order to give it the character
of a navigable stream, it must be generally and commonly useful to some purpose of
trade or agriculture."

" The mere fact that logs, poles, and rafts are floated down a stream occasionally
at times of high water does not make it a navigable river." (United States v. Rio
Grande Dam and Irrigation Co., 174 U.S. at p. 698, where it was held that the Rio
Grande, between the points mentioned in the case, was not navigable.)

It seems clear from the principle of these cases that a river may be deemed
navigable even though it is in fact only intermittently navigable, provided that it is
really useful for commerce.

If, however, a stream be in fact connected with the waters of other States, it is
immaterial that in its natural condition it was not an inter-state highwaj'. Such a limited
constriiction " cannot be adopted, for it would exclude many of tha great rivers of this
country, which were so interrupted bj' rapids as to require artificial means to enable
them to be navigated without break. Indeed, there are but few of our fresh water

§417.] FINANCE AND TRADE.. 883

rivers which did not originally present serious obstructions to an unintemipted
navigation." (The Montello, 20 Wall, at p. 439.) And it has even been held to be
immaterial that the stream is entirely of artificial construction. {Ex parte Boy er, 109
U.S. 629.)

" The control vested in the general Government to regulate inter-state and foreign
commerce involves the control of the waters of the United States which are navigable
in fact, so far as may be necessary to ensure their free navigation, when by themselves
or in connection with other waters they form a continuous channel for commerce among
the States or with foreign countries." (Escanaba Co. v. Chicago, 107 U.S. at p. 682.)
Accordingly the Chicago River and its branches, though lying within the limits of the
State of Illinois, were held to be navigable waters of the United States, which Congress
may control so far as to protect, preserve, and improve, free navigation.

Whether a river is or is not navigable at any point is ordinarily a matter of
proof ; though the fact that some rivers are navigable, and others not, may be a matter
of common knowledge, and judicially noticed. (United States v. Rio Grande Dam and
Irrigation Co., 174 U.S. 690.)

Extent of Federal ArxHOKiTY. — The extent of the federal authority over
navigable waters has in the United States been the subject of numerous decisions, and
has been laid down in very wide terms. Thus it is held that the power to regulate
na%-igation includes the power to improve the navigable channel (Wisconsin v. Duluth>
96 U.S. :^79) ; to close one of several channels of a river in order to improve the
navigability of another (South Carolina v. Georgia, 93 U.S. 4) ; and to make a new
channel (Prentice and Egan, Commerce Clause, p. 110). In short the federal power
includes authority to do ever3'thing necessary " to make and keep the highway open and
safe (Prentice and Egan, Com. Clause, p. 109). " Congress can do anything which, in
its reasonable effect, regulates inter-state or foreign commerce, or the instruments of
commercial intercourse ; and the word ' regulate,' as employed in the Constitution, not
only covers all rules prescribing the way in which such commerce can be conducted, but
also all real or supposed improvements of the means of communication. In this idea of
the word rejyw/aie is found the judicial justification of all our internal improvements."
(Lewis, Federal Power over Commerce, p. 19 ) The power of Congress to pass laws for
the navigation of rivers, and to prevent all obstructions therein, cannot be disputed.
(United States v. Bellingham Bay Boom Co., 176 U.S. 211.)

The words of this Constitution are even wider. The Parliament has power, not
merely " to regulate commerce," but " to make laws with respect to trade and com-
merce," a phrase which would seem to be as wide as the most extended construction
which the American courts have given to the word " regulate."

For the carrying out of these public purposes the Federal Parliament has all the
incidental powers which are necessary. Thus it has been held in the United States that
Congress has the power of eminent domain over the shores and the submerged soil.
(Monongahela Na\-igation Co. v. United States, 148 U.S. 312; Stockton v. Baltimore,
&c., R. Co., 32 Fed. Rep. 9 ; Prentice and Egan, Com. Clause, p. 110.) " All navigable
waters are under the control of the United States for the purpose of regulating and
improving navigation ; and although the title to the shore and siibmerged soil is in the
various States, and individual owners under them, it is always subject to the servitude in
respect of navigation created in favour of the Federal Government by the Constitution."
(Gibson v. United States, 166 U.S. 269.) In that case it was held that riparian owner-
ship of navigable rivers is subject to the obligation to suffer the consec|uences of an
improvement of the na\'igation under an Act passed by Congress in the exercise of its
dominant right, and that damages resulting from such improvement cannot be recovered.
(See South Carolina v. Georgia, 93 U.S. 4; ShiveU- v. Bowlby, 152 U.S. 1 ; Eldridge r.
Trezevant, 160 U.S. 452.) In this Constitution, the power of acquiring the property of
States or individuals for " any purpose in respect of which the Parliament has power to
make laws" is expressly given by sec. 51 — xxxi.

884 COMMENTARIES ON THE CONSTITUTION. [Sec. 100.

In Green Bay and Mississippi Co. v. Patten Paper Co., 172 U.S. 58, it was held that
water power incidentallj'^ created by the erection and maintenance of a dam and canal by
the United States was (under the facts in that case) subject to control and appropriation
by the United States. The Court afterwards explained that this decision did not apply
after the waters had flowed over the dam and through the sluices, and found their way
to the unimproved bed ; and held further that though State courts might legitimately
take cognizance of controversies between riparian owners as to the use and apportion-
ment of waters flowing in non-navigable parts of a stream, they could not interfere, by
mandamus, injunction, or otherwise, with the control of the surplus power incidentally
created by the Federal dam and canal. (Green Bay, &c , Co., v. Patten Paper Co., 173
U.S. 179.)

The Congress of the United States has power, not only to improve the navigability
of waters, but to prevent their obstruction by any State or person, by means of bridges,
dams, piers, or other structures which interfere with navigation. It follows as a
corollary to the power to preserve free navigation that Congress has the paramount right
to conclusively determine what shall be deemed, so far as commerce is concerned, an
obstruction. (Miller 7;. Mayor of New York, 109 U.S. 385.) " Congress has the right
to abate all bridges which obstruct the free passage of inter-state commerce on a river.
The fact that a greater amount of inter-state commerce passes over than under the bridge
is immaterial." (Lewis, Fed. Pow. over Comm. p. 18 ; Bridge Co. v. United States, 105
U.S. 470 ; The Clinton Bridge, 10 Wall. 454. For Federal legislation on this subject in
the United States, see Prentice and Egan, Commerce Clause, pp. 1 12, 126. ) It has even been
held that a dam on a non-navigable tributary may, by diminishing the supply of M'ater
to a navigable river, become an obstruction. (United States v. Rio Grande Dam and
Irrigation Co., 174 U.S. 6S0. ) In this Constitution the Federal power of interference in
such cases is substantially limited by the prohiV)ition contained in this section.

"An unlawful obstruction in public navigable waters which threatens irreparable
injury to an individual may be the subject of relief in equity (Texas and Pac. R. Co. r.
Inter-State Transportation Co., 155 U.S. 585), and, when constructed, may be a public
nuisance which any interested person may abate." (Prentice and F^gan, Comm. Clause,
p. 112.)

Not only can Congress prevent obstructions by the States ; it can, by virtue of its
paramount power over trade and commerce, create or authorize the creation of obstruc-
tions such as bridges and dams. (See a long list of cases cited by Prentice and Egan,
Comm. Clause, p. 111.)

Except as to the limitation in favour of user of the water by States and by residents
therein, these decisions seem applicable to the trade and commerce power as conferred
by this Constitution. It appears clearly from the debates of the Convention, and
particularly the debates referred to in the Historical Note to this section, that the
Convention was fully aware of the wide scope of the American decisions, and was
content that they should be applied — with the limitation mentioned — to this Consti-
tution.

In the case of railroads, indeed, the Constitution does seem to contemplate a more
limited power of control than exists in the United States. The express powers given
(sec. 51 — xxxiii., xxxiv.) to acquire State railways with the consent of a State, and to
control railways in a State with the consent of the State, not only imply that those
powers may not be exercised without such consent, but perhaps imply also that tlie
powers would not have existed, or that their existence might have been doubtful,
without express words. It may be argued that the facts that it was deemed necessary
to give such express powers at all, and that the powers so given were limited by
requiring the consent of the States, show that a narrower scope was contemplated for
the whole trade and commerce power. Such arguments from implication, however, are
never very strong. If the Convention had meant the navigation power to be construed
more narrowly than in the United States, the matter would hardly, in the face of the

? 417.]

FINANCE AND TRADE. 885

American authorities, have been left to implication. Besides, the express gitt of the
power of eminent domain (sec. 51 — xxxi.) which enables the Commonwealth to acquire
property "for any purpose in respect of which the Parliament has power to make
laws," evidences a broad view not onlj- of the trade and commerce power, but of all the
legislative powers vested in the Commonwealth. It is submitted, therefore, that subject
to exceptions expressed or arising by clear implication from the language of the Consti-
tution—such as the exception expressed in this section in favour of the user of water,
and the exception implied in sec. 51 — xxxiii. and xxxiv. against the acquisition of the
railways of a State, or the construction of Federal Railways in a State, without the
consent of the State —the trade and commerce power, with respect to navigable waters,
has as wide a scope as in the United States. In this view, the Commonwealth may
create waterways for inter-state commerce, or anj' other kind of highway' except rail-
ways ; and for that purpose it may not only improve the navigability of na\-igable
streams, but may create navigabilitj' in naturally non-navigable streams, and may cut
eauals where no streams previously existed.

CoNCURREXT Powers of the States — The navigation power, being part of the
trade and commerce power, is not ' ' exclusively " vested in the Parliament of the
Commonwealth, and, therefore, the concurrent power of the States to deal with inter-
state navigation and with navigable waters will continue, subject to be ousted, in part
or in whole, by Federal legislation.

In the United States, the distinction between those parts of the commerce power
which are in their nature exclusive, as requiring uniform legislation, and those which
are concurrent, as admitting of auxiliary local legislation in the absence of Federal
legislation (see pp. 527, 530, supra), has led to a subordinate distinction being drawn
between streams which are whoU}- within the limits of a State, and streams which form
the boundary between two States, or flow through two or more States. With regard to
the former streams much wider concurrent powers of control have been conceded to the
States than with regard to the latter.

" It has alwajs been the rule that, in the absence of Federal legislation, the States
may prevent obstruction of navigable waters within their limits ; may regulate the
placing of buoys and beacons ; the construction of wharves ; and may deepen channels ;
change outlets of lakes and rivers, construct dams and locks to increase the depths of
water or for other purposes, care being taken not to create serious impediments to the
navigation of important waters ; may construct canals around falls and improve their
harlxjurs and rivers generally, and may collect a charge from vessels using the improved
navigation, as a compensation for the facilities thus afforded." (Prentice and Egan,
Comm. Clause, p. 11.3; Mobile v. Kendall, 102 U.S. 691 ; State v. Illinois Central Rail-
way, 146 U.S. 387 ; Pound v. Turck, 95 U.S. 459 ; Willson v. Blackbird Creek Marsh
Co.. 2 Pet. 245; Sands v. Manistee R. Impi-ovement Co., 123 U.S. 288 ; Monongahela
Nav. Co V. United States, 14S U.S. 312; Huse v. Glover, 119 U.S. 543; Gloucester
Ferry Co. v. Pennsylvania, 114 U.S. 196.)

Thus it was held in Huse v. Glover, 119 U.S. 543, that if, in the opinion of a State,
its commerce will be more benefited b\' improving a navigable stream within its borders
than by leaving it in its natural condition, it may authorize the improvements though
individuals may be inconvenienced ; and that a river does not change its legal character
as a highway if crossings by bridges or ferries are allowed under reasonable conditions,
or if dams are erected under like conditions. "The erection of bridges with dams and the
establishment of ferries for the transit of persons and property, are consistent with the
free navigation of rivers." (Huse v. Glover, at p. 547.)

In the same case it was held that a toll for the use of the improvements was not a
tax. ' ' The fact that if any surplus remains from the tolls, over what is used to
keep the locks in repair, and for the collection, it is to be paid into the State Treasury
as a part of the revenue of the State, does not change the character of the toll or im-
post." (Huse V. Glover, at p. 549.)

And a State may not only, in the absence of Federal legislation, improve the
navigability of rivers, but may even obstruct navigability. Thus in Hamilton v. Vicks-
burg R. Co., 119 U.S. 280 (following Cardwell v. Bridge Co., 113 U.S. 205) it was held

886 COMMENTARIES ON THE CONSTITUTION. [See. 100.

that persons acting under the authority of a State may construct bridges over navigable
streams. The opinion of the Court contains the following passage : —

" What the form and character of the bridges should be, that is to say, of what
height they should be erected, and of what materials constructed, and whether with or
without draws, were matters for the regulation of the State, subject only to the
paramount authority of Congress to prevent any unnecessary obstruction to the free
navigation of the streams. Until Congress intervenes in such cases, and exercises its
authority, the power of the State is plenary. When the State provides for the form and
character of the structure, its directions will control, except as against the action of
Congress, whether the bridge be with or without draws, and irrespective of its effect
upon navigation. As has often been said by this Court, bridges are mei'ely connecting
links of turnpikes, streets, and railroads ; and the commerce over them may be much
greater than that on the streams which they cross. A break in the line of railroad
communication from the want of a bridge may produce milch greater inconvenience to
the public, than the obstruction to navigation caused by a bridge with proper draws. In
such cases, the local authority can best determine which of the two modes of transporta-
tion should be faA-oured and how far either should be made subservient to the other."

When a bridge is lawfully built over a navigable river, its owners may have recourse
to the courts to protect it ; and relief granted by the courts is not a regulation of
commerce. (Texas and Pacific R. Co. v. Inter-state Transp. Co., 155 U.S. 585.)

The general principle, as finallj' settled by the courts of the United States, is
summed up by Prentice and Egan (Comm. Clause, p. 117) as follows: — "The question
whether or not an obstruction should be permitted in navigable waters wholly within a
State is essentially legislative, and this, it is now held, in the absence of federal
legislation, is controlled entirely by the States."

The principles which, in the absence of federal legislation, would govern inter-state
streams, are less clearly defined in the United States — chiefly because federal legislation
has, as a matter of fact, occupied the field, and made the question one of little practical
importance. Authority seems to show, however, that the power of the Federal
Government to authorize obstructions is in such cases regarded as exclusive. (Albany
Bridge Case, 2 Wall. 403 ; Pennsylvania v. Wheeling Bridge Co., 13 How. 518; Prentice
and Egan, Comm. Clause, pp. 118-120; Lewis, Federal Power over Commerce, p. 56.)

It is contended, however, by Dr. Lewis (Fed. Pow. over Comm. pp. 58-9) that the
question whether a stream is within the limits of a State, or flows through or between
two or more States, is not the conclusive test of concurrent control.

"It is impossible to draw the boundary line between rivers which are under the
concurrent control of the State, and those which are national in their character. Such a
rule as the one above stated, concerning the national character of streams flowing on the
boundaries of States, and the local character of those wholly within a State, is purely
empirical. A stream is not national in character because of its geographical position;
the national character depends upon the importance of its navigation to the people of
the Union as a whole. . . . We do not wish to minimize the value of general rules
indicating the class of rivers under the concurrent power of the State. Nevertheless,
the Supreme Court will not have to overrule its previous decisions in order to change or
modify empirical distinctions. They are invented for utility ; whenever a strict adherence
would result in a palpable absurdity the}' will be abandoned. To say that all rivers on
the boundaries of States are national in character and require the exclusive control of
Congress, or that a State can place physical obstructions in all navigable streams
entirely within her boundaries, means, and can mean nothing more, than that the
majority of rivers of a particular class are national or are local in character."

It thus appears that in the United States three classes of navigable waters are
recognized : —

(1.) Waters which are wholly within a State, and do not connect with the
waters of other States (either by ocean, lake, river, canal, or otherwise)
to form a continuous inter-state waterway. These waters are under the
exclusive control of the State.
(2.) Waters which are wholly within the limits of a State, but which connect
with the waters of other States to form a continuous inter-state waterway.
These may be controlled by the Union, but in the absence of Federal
legislation are subject to the concurrent control of the States.

§§417-418.] FINANCE AND TRADE. 887

(S. ) Waters flowing on the boundaries of States or through two or more States.
These are under the exclusive control of the Union.

Or perhaps, following Dr. Lewis' principle of classification, it might be said that
streams on which there can be no Federal navigation are exclusively controlled by the
States ; that streams on which Federal navigation is unimportant, may be controlled by
the States until the Union chooses to exercise control ; and that streams on which
Federal navigation is important are exclusively controlled by the Union.

Application of American Decisions. — In considering the applicability of the
American decisions, it must be borne in mind that the Australian Constitution is explicit
on two points on which the Constitution of the United States is silent. It provides
(sec. 92) that after the imposition of uniform duties, inter-state commerce shall be
absolutely free ; and it provides (sec. 107) that every power of the State Parliaments,
unless exclusively vested in the Federal Parliament or withdrawn from the State
Parliaments, shall continue. No part of the commerce power (except customs, excise
and Ixjunties), or of the navigation power which it includes, is " exclusively" vested in
the Federal Parliament ; and therefore — in the absence of Federal legislation — it would
.seem that the States may exercise concurrent control over all navigable waters within
their jurisdiction, except so far as the power to obstruct may be " withdrawn " from the
State Parliaments by the constitutional provision that trade among the States shall be
" absolutely free " (sec. 92). That provision, it would seem, does not extend to prevent
such incidental physical obstructions as may arise from the bona fide exercise by the States
of the concurrent power to regulate inter-state commerce in the absence of Federal legis-
lation. It is to be noted that the provision for freedom of trade is as binding on the
Commonwealth as on the States. Any obstruction which would be unlawful under sec.
92, if created by a State, would be equally unlawful if created by the Commonwealth ;
so that no argument for an exclusive power can be founded on that section. It would
seem therefore that, in the absence of Federal legislation, the States may exercise con-
current control over all navigable waters within their jurisdiction ; subject of course to
all the constitutional conditions — such as the prohibitions against interfering with free-
dom of trade (see. 92) and against discriminating against the citizens of other States
<sec. 117) — by which the exercise of State power is controlled.

.§ 418. " Abridge the Right of a State or of the Residents

Therein."

These words do not preserve the pre-existing rights of the States in their entirety.
They forbid the Commonwealth to abridge the right of a State or its residents to the
" reasonable " use of the waters for certain purposes; but they do not forbid the
Commonwealth to abridge the right of a State or its citizens to the unreasonable use of
the waters for those pui-poses, or to their use for other purposes. (See Notes §§ 419,
421, infra.)

RioHTS Before Federation. — Before Federation, it is clear that the legal rights
of each Colony— or of the residents of that colony, as against residents of another
colony — to the use of the waters of rivers flowing through the colony, were absolute.
There is no such thing as a riparian law between independent States ; and as regards
their direct relations with each other the several colonies were practically independent.
Each colony received, as a part of its heritage, the common law of England ; and
consequently each colony had, as part of its law, the riparian common law of England.
But that law became the law of each colony separately, and not law between the colonies,
nor the general law of all the colonies. Each colony had power, by legislation, to alter
the common law with regard to the rights to use the waters. Accordinglv the Parliament
of Victoria, by the Irrigation Act, 1886, No. 898, amended by the Act No. 983, and now
re-enacted in the Water Act, 1890, sec. 293. dealt in a comprehensive manner with the
control of river waters and watercourses, and riparian rights in connection therewith.

888 COMMENTARIES ON THE CONSTITUTION. [Sec. 100

And the Parliament of New South Wales, by the Water Rights Act, 1896, defined the
rights of riparian proprietors in that colony, and, subject to those rights, vested in the
Crown the right to the use and flow and to the control of water in all rivers and lakes.
A precisely similar course of events happened in some of the American States. In each
State the common law of riparian rights at first prevailed ; but in the " arid region,"
where the use of the water is necessary for development, the common law, which entitled
every riparian proprietor to the continued natural flow of the water, was found
unsuitable, and by custom and State legislation a different rule was recognized, which
permits, under certain circumstances, the appropriation of the waters of a flowing stream
for mining, agricultural, and other purposes. (United States v. Rio Grande Dam and
Irrigation Co., 174 U.S. 690 ; and see Con v. Deb., Melb., pp. 420-3 ; Prentice and Egan,
Comm. Clause, p. 116.)

It was suggested at the Convention, by Mr. Gordon, Mr. Holder, and others, that
there were some riparian rights between the colonies, based either upon common law, or
upon international law, or upon international comity ; and that relief might be had, if
not in the colonial courts, at least by application to the Imperial Government. (See
Conv. Deb., Adel., pp. 794. &c. ; Melb., pp. 31, &c. ; 405, &c. ) So far, howevei-, as these
claims rest upon any suggestion of a legal right, they fail, not only, as was suggested in
the Convention (for instance, Conv. Deb., Melb., p. 493), for want of a tribunal, but for
want of a law which such tribunal should administer.

Nor does international law carry the matter any further. There is no principle
which limits the rights of a State or its citizens to the use of waters flowing through
the State. Free navigation of such waters, subject to certain conditions, is indeed
generally a subject of treaty or convention between States, and it may be that a refusal
to enter into any such convention might be a breach of international comity. (Pitt
Cobbett, Cases on Internat. Law, p. 43 ; VValker, Pub. Internat. Law, p. 37 ; Hall,
Internat. Law, § 39 ; Conv. Deb., Adel., p. 795 ; Melb., p. 419.) But there is certainlj'
no principle of international law, and no conventional usage, which purports to apportion
the rights of States to appropriate the waters of rivers. The rights of irrigation do not
seem to have even formed the subject of international questions in Europe.

" The only ii-rigating rivers in Europe are those of France, Italy, and Spain, which
flow wholly within the territory of the States concerned, and have as yet afforded no
opportunity' for any difference of opinion on this point. The rivers in regard to which
international agreements have been made, and of which the River Danube is an excellent
example, are not rivers used for the purpose of irrigation, even to an infinitesimal
extent. As a matter of fact, the only river, so far as we know, in which difierent
States are interested, and in which this question has assumed any importance, is the
River Rio Grande, dividing Mexico from the United States of America, and there the
Mexican Republic, so far as I know, has never been able to obtain any official recognition
of its claims from the United States Government, although that river, in many portions,
has been almost entirely deprived of its water at certain seasons of the year." (Mr.
Deakin, Conv. Deb. Melb., pp. 1970-71.

Besides rivers flowing through two or more States, the question of boundary rivera
needs to be discussed. In Australia the boundaries between States are mostly parallels
of latitude and meridians of longitude ; but there are two river boundaries — namely,
that formed by the Murraj' River between New South Wales and Victoria, and that
formed by the Dumaresq and Maclntyre Rivers between New South Wales and
Queensland. The rule of international law as to boundary rivers is that " where it is
not proved that either of the riparian States possesses a good title to the whole bed,
their territories are separated by a line running down the middle, except where the
stream is navigable, in which case the centre of the deepest channel, or, as it is usually
called, the Thalweg, is taken as the boundary." (Hall, Internat. Law, § 38 ; and see
Rorer, Inter-State Law, p. 438.)

In the case of the Dumaresq and Maclntyre Rivers (see Letters Patent of 6th June,
1859, p. 73, Hupra) this riile would undoubtedly apply ; but in the case of the Murray
River, special provision is made by the Australian Colonies Government Act (13 and 14

§418.] FINANCE AND TRADE. 88^

Vic. c. 59) and by the New South Wales Constitution Statute (18 and 19 Vic. c. 54).
Sec. 4 of the Australian Colonies Government Act defined the territory of Victoria as
" bounded on the North and North-East by a straight line drawn from Cape Howe to
the nearest source of the River Murray, and thence by the course of that river to the
eastern boundary of the colony of South Australia " Sec. 5 of the Constitution Statute
recited that doubts had arisen as to the true meaning of this description of the boundary,
and declared and enacted that —

" The whole water-course of the said River Murraj' from its source therein
described to the eastern boundary of the colony of South Australia is and shall be
within the territory of New South Wales. Provided nevertheless that it shall be lawful
for tlie Legislatures and for the proper officers of customs of both the said colonies of
New South Wales and Victoria to make regulations for the levying of customs duties
on articles imported into the said two colonies respectiveh' by way of the River Murray,
and for the punishment of offenders against the customs laws of the said two colonies
respectively committed on the said river, and for the regulation of the navigation of the
said river by vessels belonging to the said two colonies respectively. Provided also that
it shall be competent for the Legislatures of the said two colonies by laws passed in
concurrence with each other to define in any different manner the boundary line of the
said two colonies along the course of the River Murray and to alter the other provisions
of this section.''

Under this section the whole watercourse of the Murray, so far as that river forms
the boundary, is within the territory of New South Whales ; and it has been contended
on behalf of New South Wales that this grant carries with it the entire control of the
river, except so far as concurrent jurisdiction is expressly given to Victoria. The
jurisdiction as to customs duties and customs offences will become obsolete on the
imposition of a uniform tariff, and need not be considered. The only remaining juris-
diction of Victoria, it would seem, is " to make regulations . . . for the regulation
of the navigation of the said river bj' vessels belonging to Victoria." This power to
regulate the navigation of the river by particular vessels is clearlj' a much more limited
right than the power to regulate navigation generally ; it appears to mean the licensing
and general control of the vessels themselves, and not to extend to physical control of
the river except as regards wharves or landing places on the Victorian side.

" Upon whatever ground property in the entirety of a stream or lake is established,
it would seem in all cases to caiTj' with it a right to the opposite bank as accessor}' to
the use of the stream." (Hall, Intemat. Law, § 38.) A water-course consists of the
bed, the two banks, and the water; the bank being the uttermost part of the bed in
which the river naturally flows. (Angell on Water-courses ; Conv. Deb., Melb., p. 440.)
The whole water-course being within the territory of New South Wales, it would seem
that that colony had— subject to the Victorian right to regulate the navigation by
Victorian vessels — the same control over its waters as over the waters of a river flowing
through the colony.

In respect of boundary' streams, to which the title of both colonies depends on an
Imperial grant, it maj- be that, notwithstanding the absence of an inter-colonial riparian
law, there may be mutual rights to the appropriation of the water, which may be the
subject of adjudication in a court. See Stillman v. White Rock Manuf. Co., 3 Wood."
and M. 538 (cited Rorer, Inter-State Law, p. 446) an interesting case decided in a
Circuit Court of the United States. The parties owned mills on opposite sides of the
River Pawcatuck, the centre of which is the l^undarj- line between Connecticut and
Rhode Island. Both were supplied with water-power from the river, and one of them,
by a canal, divertetl more than one undivided half of the water. Notwithstanding that
the two mills were situated in different States, and in different circuits, it was held that
an injury was committed for which an injunction could be had in the Circuit Court
which had jurisdiction on the side on which the canal was cut. The decision was based
on the principle that each party, as against the other, had a corporeal easement or right
to an undivided half of the water of the whole stream, or a tenancy in common therein j
and that there was therefore a remedy both for the direct injury to the easement and to
the consequential injury to the lands adjoining. This, of course, is altogether different

890 COMMENTARIES ON THE CONSTITUTION. [Sec. 100.

to the proposition that the common hiw right to an undiminished flow has any inter-
state application. If good law, the case might possibly be applicable to a boundary
stream, such as the Maclntj're, between two colonies.

Rights after Federation. — The establishment of the Commonwealth, though it
confers on the Federal Parliament new, and to some extent dominant, legislative powers,
does not, in the absence of federal legislation, greatly alter pre-existing rights. There
are indeed the provisions that the citizens of other States must not be discriminated
against (sec. 117), and that after uniform duties trade must be free ; but it seems quite
clear that each State retains its own riparian law, and that no inter-state riparian law
arises, nor — except as to navigation — can arise. The Federal Parliament has power to
legislate as to inter-state navigation, and it may incidentally — subject to the restriction
as to reasonable use— control the waters for that purpose ; but it has no power to
dispose of the water for any other purpose, such as irrigation or conservation. Nor can
there be any Federal common law regulating such appropriation ; for that would lead
to the absurdity that there was a part of the common law which could not be altered
either by the Federal Parliament or by the State Parliament. There can be no federal
common law on matters outside the legislative power of the Federal Parliament ; so that
after federation — as before — the claim to an undiminished flow, as between States or
citizens of different States, would seem still to fall on the ground that there is no law
applicable to the case.

§ 419. ''The Reasonable Use."

Reasonable Use. — As originally proposed by Mr. Reid, without the word
"reasonable," this provision would have prevented any interference whatever by the
Federal Parliament, under the trade and commerce power, with the absolute right of
the States to appropriate the waters of rivers for the purposes named. On the other
hand, the omission of the whole provision would have left the navigation power supreme
over the rights of the States, and would have made it legally possible for the Federal
Parliament to ignore the requirements of conservation and irrigation altogether. The
words as they stand recognize the supremacy of the navigation power only so far as it
does not conflict with "reasonable use" for conservation and irrigation — thus
subordinating navigation to the reasonable requirements of tlie States for such purposes.

Before discussing the interpretation of the word " reasonable," it will be well to
point out how, in the United States, in spite of the legal supremacy of the navigation
power, the actual necessities of the " arid region " have secured some slight recognition
at the hands of the courts.

In Broder v. Water Co., 101 U.S. 274, 276, the court said : "It is the establishe<l
doctrine of this court that rights of miners, who had taken possession of mines and
worked and developed them, and the rights of persons who had constructed canals and
ditches to be used in mining operations and for purposes of agricultural irrigation, in the
region where such artificial use of the water was an absolute necessity, are rights which
the Government had, by its conduct, recognized and encouraged and was bound to
protect, before the passage of the Act of 1866. We are of opinion that the section of
the Act which we have quoted was rather a voluntary recognition of a pre-existing right
of possession, constituting a valid claim to its continued use, than the establishment of
a new one. "

This was a recognition of a right of " reasonable use," based on encouragement on
the one side and expectation on the other, apart altogether from federal legislation.

In United States v. Rio Grande Dam and Irrigation Co., New Mex., 51 Pac. Rep.
674, it was held in the Court of the Territory of New Mexico that where a stream is of
small value for navigation, and of great importance for irrigation, a State may destroy
its navigability in the interests of irrigation. In the Supreme Court, however, this
doctrine was not upheld. It was admitted that every State has the power, within its

§419.] FINANCE AND TRADE. 891

-dominion, to alter the common law rule as to the appropriation of flowing waters, and
to permit their appropriation for such purposes as the State deems desirable. It was
also admitted that by Acts of Congress (cited in the opinion) Congress had recognized
and assented to such appropriation ; but it was not to be inferred that Congress thereby
meant to confer on any State the right to appropriate all the waters of the tributarj'
streams which unite into a navigable watercourse, and so destroy the na\'igability of
that watercourse, in derogation of the interests of the people of the United States.
(United States r. Rio Grande Dam and Irrigation Co , 17-4 U.S. 690.)

This Constitution, however, gives explicitly what Congress and the Courts of the
United States have only partially conceded— the right of the States and their residents
to the reasonable use of the water for certain purposes, notwithstanding that navigability
may be interfered T*-ith.

What is Reasonable. — The difficultj' of conceding absolute paramonntcy to either
navigation on the one hand, or conservation and irrigation on the other hand, has been
met by the word " reasonable," which gives the " reasonable use " for conservation or
irrigation a priority' over navigation, but which gives navigation a priority over the
unreasonable use for conservation or irrigation. That is to say, the question of priority
is not determined absolutely by the Constitution, but is left to be determined in each
case according to the circumstances, by the application of principles laid down by the
Constitution.

What is " reasonable " must depend on the facts of each case ; but the facts in each
case ought to be considered and balanced in accordance with fixed principles. To secure
uniformitj- and certainty in the law, it is important that the elements of reasonableness
— the principles upon which any use is declared reasonable or unreasonable — should be
clearly laid down. This can only be done authoritatively b}' the Courts ; but a short
discussion of some aspects of the question will perhaps be useful.

From whose point of view is "reasonableness" to be decided? Are the require-
ments of the conserving or irrigating State or citizen to be taken into account alone,
irrespective of the needs of navigation ; or are the public interests as a whole to be
considered, bj* balancing the requirements for both purposes, and regulating the use of
the water according to the relative importance of the two purposes ? On the first
assumption, the fair requirements of cultivation have to be estimated independently,
whether the damage to navigation be great or small ; on the second assumption, the
amount of water which may reasonably be used for cultivation will vary according to its
importance for navigation. Neither assumption is wholly free from difficulty. On the
one hand, if the amount which the cultivator may appropriate is to be determined
irrespective of navigation, it would seem " reasonable " for him to drain the river dry,
if he derived the least profit from doing so, although the damage to navigation might be
immensely greater than his gain. From his point of view, every use would be reasonable
which benefited him, no matter how much it might cost others. On the other hand, if
navigation and cultivation are to be weighed equally in the balance, according to their
respective value to the community, the reasonable priority of user may vanish altogether,
and the importance of navigation may make it unreasonable, in some cases, to take a
single drop for cultivation.

Or again it may be argued that the spirit and intention of the clause require an
intermediate basis — one which would not determine " reasonable use " without reference
to the requirements of navigation, but which would, whilst considering both require-
ments, give a " reasonable " degree of prioritj" to the rights of cultivators. It may be
said that the section refers to existing rights, and forbids any abridgment of those
rights so far as they involve reasonable use ; and that the spirit of this prohibition
requires a liberal construction of existing rights, and a strict construction of the
abridging power. The reasonableness of use may involve questions, not only of the
amount of water taken, but of the season at which it is taken, the utility of the purpose
to which it is applied, and the manner of its application to that pui-pose. It may

892 COMMENTARIES ON THE CONSTITUTION. [Sec. lOOi

be unreasonable to conserve or divert any water when the river is low, but reasonable-
to conserve or divert large quantities when the river is high ; it may be reasonable
to irrigate, but unreasonable to adopt a needlessly wasteful mode of irrigation ; and
so on.

Analogy with the Common Law. — The limitation placed by this section oni
federal legislation bears an interesting analogy with the rules of the common law oa
the subject of riparian rights. The common law recognizes, and is obliged to some
extent to compromise between, the right of the lower riparian proprietor to an
undiminished flow, and the right of the upper riparian pi-oprietor to use the water.
The compromise it makes is to require, on the one hand, that the flow shall not be
suhslantially diminished, and on the other that the consumption of water must be
reasonable. (Embrey v. Owen, 6 Exch. 358.)

" If a lower proprietor has a right to the free flow of the water without diminution,
or alteration, a right to consume the water before it reaches him is apparently
irreconcilable with it ; but such inconsistencies are to be met with in all natural rights,
and the law reconciles them by holding that each is only to be enjoyed reasonably, that
they are not absolute rights without limit, but that they are rights modified by all the
rights of others. The right to uninterrupted flow of water is therefore subject to limit
bj' the right to reasonable use and consumption of the water by others, and the right
to iise and consume must be exercised so reasonablj' and moderately that others may
not be immoderately deprived of the quantity of water they are entitled to." (Encycl.
of the Laws of Eng. sub tit. " Watercourse.")

" On the one hand, it could not be permitted that the owner of a tract of many
thousand acres of porous soil abutting on one part of the stream could be permitted
to irrigate them continually by canals and drains, and to cause a serious diminution of
the quantity of water ; .... on the other hand, one's common sense would be
shocked by supposing that a riparian owner could not dip a watering-pot into the stream
in order to water his garden, or allow his family or his cattle to drink it. It is entirely
a question of degree." (Per Parke, B., Embrey v. Owen, 6 Exch. at p. 372.)

The distinction has been drawn in another way by saying that every proprietor has
a right to the "ordinary" use of the waters without regard to the effect on other
proprietors, but he is not entitled to the " extraordinary" use if he thereby interferes
with the rights of others. (Miner v. Gilmour, 12 Moo. P.C. 156 ; Ormerod v. Todraorden
Joint Stock Mill Co., 11 Q.B.D. 155.)

The principle of modifying the right to the uninterrupted flow by a countervailing
right to "reasonable use" is therefore a part of the common law of England ; but its
application, under English conditions, has been to restrict the " reasonable use" within
very narrow limits — to allow a riparian proprietor to " dip a watering-pot," but to insist
on a substantially undiminished flow. (See Medway Navigation Co. i;. Romney, 9-
C.B.N.S. 575 ; Wilts and Berks Canal Co. v. Swindon Waterworks Co., L.R. 9 Ch. 451. )■
In Australia the use of the water for cultivation is vastly more important ; and though
the principle of ' reasonable use " is the same, its application must be widely diSerent.
Parke, B., in the case cited, chose irrigation as a striking example of an unpermissible
and unreasonable use ; but in Australia the wholesale appropriation of the water may
be not only reasonable, but often essential to pastoral^nd agricultural settlement.

Analogy with Railways. —The section also presents an interesting analogy with
the sections dealing with unreasonable preferences on railways. The interests of
cultivation and navigation in the one case may be compared with the interests of the
railways and the ports in the other ; and the State-right of user of water with the
State-right of making developmental rates. In the case of the rivers, however, the
protection given to State-rights is not so complete as in the case of the railways. The
right to make developmental rates — if they apply equally to goods from other States — is
absolutely preserved, no matter what may be their effect on inter-state commei"ce ; but
the right to the user of water may be abridged so far as it is unreasonable.

In the case of rivers, the Constitution does not provide, as in the case of railways,
that a use may not be deemed unreasonable unless the Inter-State Commission decide
that it is so. The question of unreasonableness, however, would seem to be more proper

^§ 420-421.]

FINANCE AND TRADE. 893

for the Conirafssion than for the courts ; and under see. 101 the Parliament may give
the Inter-State Commission such powers of adjudication and administration as it deems
necessary for the execution of this, as every other, part of the trade and commerce law.

§ 420. " The Waters of Rivers."

A river is a stream flowing in a defined channel ; and the waters of a river are the
waters flowing over its bed and between its banks. Rainwater flowing over or perco-
lating through the soil, but not flowing in a defined channel, is not the water of a river
<see McXab v. Robertson [1897], App. Ca. 134). Artesian water is therefore not the
water of a river ; nor, it would seem, is flood-water which has escaped from the banks
of a river and overflowed the surrounding country. One interesting question that
arises is whether the great lakes and billabongs into which the Darling River spreads in
flood-time can be called part of the river, or whether the waters which they then contain
can be called the waters of the river. As defined by text-book writers, the bed of a
river is, generally speaking, all the soil below the high-Mater mark of the ordinar}- tides
and the ordinary floods. How far the bed and banks of such a river as the Darling
extend is a question of fact ; and it may be that the unique conditions of that river
make a strict adherence to the definitions of English judges and text-book writers
impracticable.

In connection ^v^th this question, the further question may arise whether the
Federal Parliament, in the exercise of its na\igation power, can in any way prevent the
appropriation of waters which are not the waters of rivers. In the gift of the naviga-
tion power (sec. 51 — i. 98) no mention is made of rivers, but this section prohibits the
abridgment, by trade and commerce laws, of the State-rights of reasonable use of the
waters of rivers. This section seems to show that the Constitution did not contemplate
federal control of other inlanil waters. No riparian law in the world, it is believed,
extends to waters not within the ripae, or banks, of a stream. The American cases
extend the authority of the Union, in respect of navigation, to all the tributary streams
of a navigable river ; and it would seem that this is the utmost limit of control. This
distinction may be important in connection with the conservation of waters in flooded
areas.

§ 421. '* For Conservation or Irrigation."

The scope of the section is limited to reasonable use for these two purposes. Any
nse by a State or its residents which does not come within one of these heads is not
protected by these sections, but is subject to the dominant power of the Federal Parlia-
ment with respect to navigation. Conservation and irrigation were the two modes of
use which engaged the special attention of the Convention, as being the only modes of use
which were contemplated on a large scale, and which seemed to threaten the navigability
of the rivers. It is clear, however, that they do not exhaust the ways in which, or the
purposes to which, water may be appropriated. Water may be diverted as a source of
power, or for sluicing purposes, or in many other waj's.

CoN'SERVATiox. — Conservation means the retention and storage, in a natural or
artificial reservoir, of waters which would naturally flow down the channel of a river.
Every dam which backs up the waters of a river conserves water in a reservoir formed
partly by the bed and banks of the river, and partly by the dam. But conservation
within the meaning of this section need not, it is conceived, be within the bed of the
river, but would include the diversion of the waters of a river to a reservoir wholly
outside the bed.

' ' The use of waters for conservation " is a somewhat indefinite phrase. Consen'a-
tion, unlike irrigation, is rather a means of use than an actual use. It is in fact the
storage of water, with a view to subsequent use in any way whatever — for irrigation, or
for pastoral purposes, or for driving machinery, or for the water-supply of a town.

894 COMMENTARIES ON THE CONSTITUTION. [Sec. 100.

"The use for conservation" would seem to mean rather "the conservation for use."
The right to conserve must imply the right to use the water conserved, otherwise it
would be useless ; and as no particular use is specified, it follows that conservation for
any purpose — provided the iise is reasonable — is authorized by the section. Thus the
conservation of waters from the Nepean in the Prospect RcFervoir, for the supply of the
cit}' of Sydney — or the conservation in the Yan Yean Reservoir of waters from the
Watt River, a tributary of the Yarra, for the supply of the city of Melbourne — cannot
be interfered with by the Federal Parliament so far as it is a reasonable use ; though it
seems that in the United States, in such a case, if the navigability of the river lower
down were interfered with, not only might Congress interpose, but the Attorney-
General under laws alreadj' made by Congress might obtain an injunction. (See United
States V. Rio Grande Dam and Irrigation Co., 174 U S. 690, cited p. 890 supra ; and also
Wilts and Berks Canal Co. v. Swindon Waterworks Co., L.R. 9 Ch. 451.)

From the above analysis the curious result would seem to follow that a use of waters-
■which does not come directly under the protection of the section may come indirectly
under that protection by the storage of the water before use. The great conservation
schemes which have been projected in regard to Australian rivers, as well as the actual
conservation schemes already carried out, are almost wholly for the purposes of pastoral
and agricultural settlement. (See speeches by Mr. J. H. Carruthers, Conv. Deb., Adel.,.
pp. 802-5; Melb., pp. 52-6, 388-399, 468-472, 1955-8; Report of Colonel Frederick J.
Home, R.E., on the Prospects of Irrigation and Water Conservation, N.S.W. Pari.
Papers, 1897, Vol. 5, p. 249.)

Iriugation. — Irrigation is the distribution of water through artificial channels over
cultivated land. Unlike conservation, it involves the use of water for a single definite
purpose — that of supplying moisture for plant life. Irrigation is extensively practised
in many European countries, and also in India and America. In Australia it is largely
in the experimental stage, the most important irrigation works at present being in the
colony of Victoria. (See Australian Handbook, 1900, p. 236 ; Mr. A. Deakin's speeches,
Conv' Deb., Adel., pp. 805-9; Melb., pp. 38-45, 452-60, 636-40, 1970-4 ; Colonel Home's
Report, N.S.W. Pari. Papers, 1897, Vol. 5, p. 249.)

One of the essential requirements of a profitable system of irrigation is a continual
and regular supply of water ; and therefore on the intermittent rivers irrigation works
can hardly be undertaken except in combination with conservation schemes which will
secure that regular supply. Close settlement is another essential condition ; and it
appears from the report of Colonel Home (cited above), that whilst conservation is an
immediately practical question, irrigation is likely to be confined for many years to the
more closely-settled districts.

Probable Effect ox Navigation'. — Irrigation and navigation may, owing to the
insufficiency of water for both, involve a conflict between the two uses ; but the present
prospects of irrigation do not point to any immediate danger to navigability. Conserva-
tion, on the other hand, is not necessarily antagonistic to navigation. The conservation
of flood waters will render it possible to maintain a more regular flow and to increase
the continuity of navigability. (See Mr. A. Deakin's speeches, Conv. Deb., Syd., 1891,
p. 691 ; Melb., 1898, p. 40.) Whether there will ultimatel}' be any serious conflict
between the rights of navigation and the rights of conservation and irrigation is therefore
problematical.

§422.] FINANCE AND TRADE. 895

Inter-State Commission.

101. There shall be*" an Inter-State Commission*^\ with
such powers of adjudication and administration*'"* as the
Parliament deems necessary*^" for the execution and main-
tenance, within the Commonwealth, of the provisions of this
Constitution relating to trade and commerce, and ot all laws
made thereunder.

United States. — A Commission is hereby created and established to be known as the Inter-
State Commerce Commission, which shall be composed of five Commissioners. — Inter-State
Commerce Act, 1887, sec. 11.

Historical Note. — The pro^'isio^ for an Inter-State Commission was first suggested
at the Adelaide session, 1897, when the Bill as first drafted contained the following
clauses : —

" 93. The Parliament may make laws constituting an Inter-State Commission to
execute and maintain the provisions of this Constitution relating to trade and commerce
upon railways within the Commonwealth, and upon rivers flowing through, in, or
lietween, two or more States."

" 95. The Commission shall have such powers of adjudication and administration as
may be necessary for its purposes, and as the Parliament maj' from time to time
determine." (Then followed a limitation as to railway rates ; see Hist. Note to
sec. 102.)

As to the expediency of constituting a commission, there was hardly anj- debate ; and
the onl}' amendment made was th^ omission of the limitation alluded to in brackets.
(Conv. Deb., Adel., pp. 1113-5, 1117-40.)

At the Melbourne session, 1898, a suggestion by the Legislative Assembly of South
Australia, to provide that the Parliament " shall " constitute an Inter-State Commission,
was discussed. In view of the decision just arrived at (see Hist. Notes to sees. 102, 104)
to make the Inter-State Commission the arbiter of unfairly preferential rates, this
proposal gained strong support ; though some of the Victorian representatives argued
that its creation should be optional with the Parliament. The amendment was eventually
withdrawn in favour of a proposal by Mr. Kingston, to substitute " There shall be " a
Commission. The Convention desired to secure to the Commission a large measure of
independence from Parliamentary control, and this amendment was agreed to. The
words limiting the scope of the Commission to railway's and rivers were then omitted, in
order that the Parliament might be free to give the Commission the widest powers of
administering the trade and commerce pro\isions. (Conv. Deb., Melb. , pp. 1512-39.)

Before the first report, the two clauses were redrafted into one, as follows : — "There
shall be an Inter-State Commission with such powers of adjudication and administration
as the Parliament from time to time deems necessary, 6«/ ^o thcU the CommissioH shall be
charged with the execution and maintenance," &c. On the second re-committal. Sir
Geo. Turner objected to the independence of the Commission, as regards its constitution
and powers, and proposed to substitute " Parliament may constitute " the Commission.
This was negatived by 23 to 13, but Mr. Barton met Sir Geo. Turner half way by giving
Parliament full control over the powers of the Commission. (Conv. Deb., Melb., pp.
2393-6.) Two verbal amendments were made after the fourth report.

§ 422. "There shall be."

The Constitution stops short of actually organizing an Inter-State Commission ; it
merely gives a definite direction to the Parliament that there " shall be " such a
Commission. Until the Parliament provides for the number of members and their
salary, the Commission cannot exist at all ; and until the Parliament determines what
powers of adjudication and administration are necessary to it, it can have no powers
at all.

896 COMMENTARIES ON THE CONSTITUTION. [Sec. 101.

The Parliament cannot, ot course, be compelled — except by its constituents— to
constitute a Commission, or to give it any powers when constituted. The imperative
words of this section, however, receive some support from the fact that sec. 102 will be
inoperative until such a Commission is constituted and given certain powers of
adjudicating as to preferences and discriminations.

§ 423. '' An Inter-State Commission."

The establishment of an Inter-State Commission for the Commonwealth was directly
suggested by the Inter-State Commerce Commission created in the United States by an
Act of Congress in 1887 ; but in some respects it bears a closer resemblance to the Com-
mission constituted by the English Railway and Canal Traffic Act, 1888 (51 and 52 Vic.
c. 25). The functions of the American Inter-State Commerce Commission were in turn
based to some extent on those of the English Railway Commissioners appointed under
the Regulation of Railways Act, 1873 (36 and 37 Vic. c. 48) ; and the original prototype
of all these commissions is the Committee of the Queen's Privy Council, familiarly known
a,s " the Board of Trade" — that very " Committee on Trade and Plantations " which in
1849 devised the first crude scheme of Australian Federation (see p. 83, supra). A short
account of the English and American Commissions thus formed will help to an under-
standing of the nature of the Inter-State Commission, and the part which it is intended
to play in this Constitution.

English Commissions. — The idea of a railway commission dates back as far as 1840.
" In that year powers were given to the Board of Trade not unlike those now exercised
by the Massachusetts Railroad Commission [i.e., powers to report and secure publicity].
These powers were further defined in 1842. The Board of Trade was as well adapted to
the work as any body then existing. It had for years past performed similar functions
in connection with shipping. It failed where the Massachusetts Commission succeeded,
not because of a difference in the law, but because the English public sentiment with
regard to railroads was not sufficiently active to give such a body the necessary moral
support to make up for lack of legal authority." (Hadley, Railroad Transportation, p.
171.) A railway Commission was appointed in 1844 with more specific powers, but the
following year it "died of too much work and too little pay." It was succeeded in 1846
by another abortive Commission with no powers at all, which " died of too much pay and
too little work." (Id.)

The Railway and Canal Traffic Act, 1854 (17 and 18 Vic. c. 31), which first made
definite provision against "undue preferences," and the withholding of "reasonable
facilities" for through traffic (see Notes, § 430, infra), had been framed with a view to
submitting questions arising under it to the Board of Trade. By the influence of the
railway companies, it was so amended in the House, that these questions came under the
jurisdiction of the Court of Common Pleas. Many of the questions raised, however,
were of a technical character with which the Court declined to grapple, and in
consequence the remedial scope of the Act was seriously narrowed.

At last, by the Regulation of Railways Act, 1873 (36 and 37 Vic. c. 48), this jurisdic-
tion was transferred to Railway Commissioners, with judicial powers to hear and
determine complaints arising under the Act of 1854 (sec. 6). The Commissioners were
empowered, and at the request of a party were required, to state a case for the Court of
Appeal upon any question of law ; but otherwise their decisions were final.

" The Railway Commission was a Court. Not an executive body, but to all intents
and purposes a court of law. And in establishing this new Court, in addition to those
already existing. Parliament had two ends in view : (1) To have a tribunal which would
and could act, when others would or could not. (2) To avoid the expense, delay, and
vexation incident to litigation under the old system. Neither end was well
fulfilled." (Hadley, Railroad Transportation, p. 173.) The chief reasons for failure
seem to have been that the jurisdiction of the Commission was too restricted, and that
it had no executive power to enforce its decrees.

§ 423.]

FINANCE AND TRADE. 897

On the face of the Act of 1873, the decisions of the Commission, as to what were
questions of fact or questions of law, appeared to be final. But by writ of mandamus
from a court of appeal the decision on this point could at once be taken out of the hands
of the Commission by compelling them to state a case, which could then be made the
subject of action in the higher court. So this important power was made of no effect.

By the Railwaj' and Canal Traffic Act, 1888 (51 and 52 Vic. c. 25), the Railway
Commissioners were replaced by the Railway and Canal Commission, with greatly
enlarged jurisdiction, and with power to award damages to complainant.s. Sec. 17 gave
an appeal from the decisions of the Commission to the Court of Appeal, "but not on any
question of fact or locus staridi ;" and provided that the Commission should not be
restrained by prohibition, injunction, certiorari, or otherwise.

The American Inter-State Commerce Commission. — "In the United States,
before the passing of the Inter-State Commerce Act, attempts had Ijeen made in many
of the States to deal with the problem of railway rates by means of Commissions. Some
of these Commissions were empowered to establish rates ; others (the most successful of
which was the Massachusetts Railroad Commission) had little or no power to act, but
were simply established for the sake of securing publicity." (Hadley, Railroad Trans-
portation, p. 136.)

In 1887, the Inter-State Commerce Act was passed by Congress. The provisions of
that Act dealing with preferences and discriminations are dealt with in the Notes to
sec. 102 ; here we are only concerned with the constitution and general powers of the
Inter-State Commerce Commission created by the Act. Sec. 11 establishes the Com-
mission, and provides for the appointment and tenure of its members. Sec. 12 authorizes
the Commission to inquire into the management of the business of "all common carriers
subject to the provisions of this Act " (i.e., all common carriers engaged in inter-state or
foreign commerce), to keep itself informed as to the manner and method in which such
business is conducted, and to obtain from such carriers full and complete information
necessary to enable the Commission to perform the duties and carry out the objects for
which it was created. The Commission is further authorized to require the attendance
of witnesses and production of documents, and to invoke the aid of the federal courts in
case of disobedience to its summons. Sec. 13 provides that any person complaining of
an}' act done by a carrier in contravention of the Act m-iy apply to the Commission by
petition. The Commission is then to call upon the carrier to satisfy the complaint, or
-answer it. If the carrier does not satisfy the complaint, or if there appears to be
reasonable ground for investigating the matters complained of, it is the duty of the
Commission to investigate them. The Commission may also investigate any complaint
forwarded by the Railroad Commission of any State, or may institute any inquiry on its
own motion.

It is the duty of the Commission to make reports of all investigations, including the
findings of fact on which its conclusions are based, and its recommendations, if any, as
to M'hat reparation should be made by the carrier to any persons injured ; and such
findings are in all judicial proceedings prima facie evidence as to the facts found.
^Sec. 15.) If the Commission is satisfied that any carrier has ^^olated the Act, or that
any party has sustained injury by such violation, it must forward to the carrier a copy
of its report, with a notice to desist from such violation, or to make reparation, or both.
(Sec. 15. ) If a common carrier violates or disobeys any order of the Commission, it is the
■duty of the Commission, and lawful for any person interested, to apply in a summary
way, by petition, to the proper Circuit Court, alleging such violation or disobedience ;
and the Court must hear and determine the matter speedily, as a court of equitj', but
without formal pleadings or proceedings, and in such manner as to do justice, and may
restrain the carrier by injunction or other process, mandatory or otherMise, and may
enforce such process by attachment or fine, and may order the payment of costs. When
the subject in dispute is of the value of .$2000 or more, either party may appeal to the
Supreme Court. (Sec. 16. )

898 COMMENTARIES ON THE CONSTITUTION. [Sec. 101.

The constitutionality of the gift of these powers to the Commission rests entirely
upon the power to "regulate commerce," and has been the subject of much litigation.
It has been clearly laid down that the Commission is a purely executive body, and
neither judicial nor legislative. " It cannot be judicial, for its members are not
appointed to hold office during good behaviour." (Prentice and Egan, Commerce Clause,
p. 289; citing Kentucky Bridge Co. v. Louisville, &c., Co., 37 Fed. R. 567.) In
Inter-State C.C. v. Brimson, 154 U.S. 447, it was argued that the power of investigation
to determine whether an offence had been committed was essentiall}^ of a judicial nature,
and could not be constitutionally exercised b^' the Commission. The majority of the
Court held that the power to investigate and to summon witnesses was an executive
power, which was validly vested in the Commission. It seems, however, that an
enquiry as to the past — whether rates already collected are reasonable — is judicial
(Inter-State C.C. v. Cincinnati, &c. Co., 167 U.S. 479) ; and such an enquiry is perhaps
bej'ond the powers of the Commission (Pi-entice and Egan, Com. CI. p. 390).

That the Commission is not a legislative body is equally clear. " Congress has not
conferred upon the Commission the legislative power of prescribing rates, either
maximum or minimum or absolute. As it did not give the express power to the
Commission, it did not intend to secure the same result indirectly by empowering the
tribunal to determine what in the past was reasonable and just, whether as maximum,
minimum, or absolute, and then enable it to obtain from the courts a peremptory order
that in future the railroad companies should follow the rates thus determined to liave
been in the past reasonable and just." (Inter-State C.C. v. Cincinnati, &c., R. Co., 167
U.S. 511 ; following Cincinnati, &c., R. Co. i;. Inter-State C.C, 162 U.S. 184. Followed
in Inter-State C.C. v. Alabama Midland R.Co., 168 U.S. 144.)

The American Commission is a corporate bodj', with power to sue and be sued in
the federal courts. (Texas and Pacific R. Co. v. Inter-State C.C, 162 U.S. 197.)

The Inter-State Commission. — In this Constitution it was deemed advisable not
to rely upon the trade and commerce power for the right to establish an Inter-State
Commission, but to provide for its establishment in the Constitution itself. The first
clause framed for this purpose was merelj' an enabling one, to remove any doubt that
might exist as to the power of the Parliament to constitute such a Commission, with
powers of adjudication and administration. But at Melbourne the case assumed a some-
what different complexion. The contest whether the Parliament or the Court was the
proper judge of what constituted an unreasonable preference was compromised b}'
referring the question of reasonableness absolutely to the Inter State Commission. The
Commi-ssion thus assumed the form of an arbiter between the States, exercising its
judgment independently of Parliament ; and it was accordingly determined not merelj- to
empower, but to require the Parliament to execute it, and the independence of its
members was adequately secured.

But although the establishment of the Inter-State Commission is directed by the
Constitution itself, no powers are given to it by the Constitution. It is to have such
powers of adjudication and administration as the Parliament deems necessary for the
execution and maintenance of the law relating to inter-state and foreign trade and com-
merce. In one respect, however— namelj', as regards the control of railway rates— the
legislative power given to the Parliament cannot be carried into effect except through
the agency of the Commission ; so that whenever legislation under sec. 102 is resorted
to, the power to adjudge a preference or discrimination be to undue or unreasonable, or
unjust to a State, cannot be assigned to any other tribunal.

The Inter-State Commission thus provided for has points of resemblance to and
difference from the Inter-State Commerce Commission in America and the Railway and
Canal Commission in England. As an administrative body, to supervise the execution
and prevent the violation of laws relating to inter-state and foreign commerce, it diiefly
resembles the American Commission ; as a body which is to have power to adjudicate,
and whose decisions are to be final on questions of fact, it resembles the English,
Commission.

§1 423-424.] FINANCE AND TRADE. 899

The powei-s of adjudication which may be given to the Inter-State Commission, and
which cannot be given to any other body, mark a wide distinction between it and its
American prototype. The American Commission can investigate and prosecute, but it
cannot adjudicate ; it is wholly dependent on the courts to confirm and enforce its
decrees. Even its findings on fact are only prima facie evidenbe, which may be rebutted
before the court. But though the powers which may be given to the Australian
Commission are far wider than those which have been given to the American Commission,
they are not so wide as those which may be given to the American Commission, if
Congress chooses. The powers of the Australian Commission cannot exceed the limits
prescribed by the Constitution itself. The Parliament cannot give it any powers except
those of adjudication or administration, or authorize it to disregard the financial
responsibilities incurred by a State, or make its decisions final on matters of law. The
provisions of the Australian Constitution, by defining the scope of the Commission,
limit the extension of that scope. On the other hand Congress, which passed the
Inter-State Commerce Act, could if it wished pass an Act giving it widely-extended
powers ; could constitute the Commission in such a way that it might exercise judicial
powers ; and could even (so far as this did not involve a delegation of legislative power
— see Prentice and Egan, pp. 309-313^ empower the Commission to fix rates.

State Railways. — There is one important respect in which, owing to the difiFerence
in Australian conditions, the duties of the Inter-State Commission will differ widely
from those of the English and American Commissions. In Australia, nearly the whole
of the railways are owned by the Governments of the States ; in England and America
they are OMTied almost wholly by private corporations. The American Inter-State
Commerce Commission is an arbiter between innumerable competing or monopolizing
i-ailway companies on the one hand, and the pu))lic on the other hand. It is only
intlirectly and occasionally that it becomes an arbiter between the States. But in
Australia the railway companies are the States ; and the Inter-State Commission — so far
as railways are conc-emed — will be chiefly an arbiter between the States. In one aspect
this circumstance will immensely simplify' the work of the Commission. It will not
have to cope with all the secret rebates and drawbacks, all the personal discriminations
to favoured shippers, all the ingenious devices, born of the strain of commercial
competition, for the purpose of evading the law. The competing interests will be fewer
and less complex, and governments may be expected to obey at least the letter of the
law. But if simplified iu one waj', the work of the Commission will be more responsible,
and perhaps more diflBcult, in another. If the competing interests are fewer, they will
be correspondingly gi-eater, and will perhaps be involved with large political issues.
The chief object of establishing the Commission was to secure an impartial and non-
political tribunal to interpret and administer the laws of the Federal Parliament relating
to rates on State railways. (See Notes to sec. 102.)

§ 424. " Such Powers of Adjudication and Adminis-
tration.'*

Adjudicatiox. — The power of adjudication is a judicial power. To adjudicate is
" to adjudge; to try and determine, as a court ; to settle by judicial decree." (Webster's
Internat. Die.) Sec. 102 shows that the Inter-State Commission is intended to
exercise powers of an essentially judicial nature, and indeed, in one class of subjects, is
given exclusive jurisdiction, and a final decision on questions of fact. Unlike the
American Commission, which can only investigate and prosecute, the Inter-State Com-
mission may be given — and no other tribunal can be given — power to decide as to the
reasonableness of rates on State railwajs. A further index of the judicial nature of
these duties is given by the provision for an appeal from the Inter-State Commission to
the High Court on questions of law (sec. 73). An appeal is the removal of a matter
from a lower judicial tribunal to a higher (see Xote, § 301, supra) ; and the appellate
jurisdiction of the High Court implies a judicial determination by the lower tribunaL

900 COMMENTARIES ON THE CONSTITUTION. [Sec. 101.

The Inter-State Commission, therefore, in respect of its powers of adjudication, is,
like the English Railway and Canal Commission, a court. It is doubtful, however,
whether it is one of the courts in which the judicial power of the Commonwealth is
vested by sec. 71. It is apparently not a court "created by the Parliament;" for
though the Parliament is left to organize and endow it with powers, it is virtually
created by the Constitution itself. Moreover, to rank it as a court created by the
Federal Parliament would be to introduce an inconsistency between sec. 10.3, which
defines the tenure of the members of the Commission, and sec. 72, which defines the
tenure of Justices of "Courts created by the Parliament." It may be contended,
however, that the Inter-State Commission comes within the definition of courts which
the Parliament invests with federal jurisdiction, though the courts especially contem-
plated by that phrase are the courts of the States ; see sec. 77 — iii. The Commission
will have no jurisdiction until the Parliament invests it with jurisdiction ; for, though the
Constitution forbids the Parliament to vest elsewhere the jurisdiction as to the unreason-
ableness of preferences and discriminations, it does not vest that jurisdiction in the
Commission — and in fact the jurisdiction will not exist until the Parliament has
legislated under sec. 102.

The question whether the Inter- State Commission is one of the courts in which by
sec. 71 the judicial power of the Commonwealth is vested may perhaps seem to be of
theoretical interest rather than of practical importance ; since this section clearly
enables part of the actual judicial power of the Commonwealth to be vested in the
Inter-State Commission. It might, however, arise in a very practical way ; if, for
example, the Parliament were to attempt to make the jurisdiction of the Inter-State
Commission exclusive of that of the State Courts (see sec. 77), or if the Parliament were
to make laws conferring rights to bring a State before the Commission, in some
controversy relating to commerce but not connected with State railways. (See sees.
78, 98.)

Administration. — The functions of the Commission, however, are not to be solely
judicial. It may also be invested with all administrative powers which are necessary
for the execution of the federal trade and commerce law. In this capacity' it can be
entrusted with all the powers and duties of investigation, inquiry, and prosecution
which belong to the American Commission. A solely judicial tribunal can take no steps
until a complaint in the nature of a judicial proceeding is brought before it ; but an
administrative department, armed with the proper powers, can make inquiries and take
action upon its own initiative. The Commission is intended to be policeman as well a8
judge.

Not a Legislative Body. — The Commission may have judicial powers, and execu-
tive powers, but no mention is made of legislative powers. The Constitution does not
contemplate the existence of any legislative organ of the Federal Government other
than the Federal Parliament itself. Apart altogether from the question whether the
Federal Parliament can delegate any part of its legislative power to other bodies, it
would seem that any such powers are by direct implication denied to the Inter-State
Commis-sion. The Parliament could no more confer legislative power upon the Inter-
State Commission than upon the High Court. (See Cincinnati, &c., R. Co. v. Inter-
State C.C, 162 U.S. 184; Texas and Pac. R. Co. v. Inter-State C.C, 162 U.S. 197;
Inter-State C.C. v. Cincinnati, &c., R. Co., 167 U.S. 479.

This does not prevent power being given to the Commission to frame purely
administrative regulations. If the Commission has power, of its own motion, to promul-
gate general orders, these must be confined to the obvious purposes and directions of the
statute law, since it has no legislative powers. (Inter-State C.C. r. Cincinnati, ifec,
R.Co., 167 U.S. 479.)

§425.] FINANCE AND TRADE. 901

§ 425. " As the Parliament Deems Necessary."

The Constitution, though it requires an Inter-State Commission to be established,
does not itself endow the Commission with any poM'ers — though some of the powers of
the Parliament (see sec. 102) cannot be carried into effect except with the help of the
Commission. The Commission can only have " such powers of adjudication and
administration as the Parliament deems necessary " for the execution and maintenance of
the trade and commerce provisions of the Constitution and of federal laws made there-
under. The power thus given to the Parliament is a very wide one. The extent of the
power of the Parliament to make laws ^\ith respect to trade and commerce has already
been discussed (sec. 51— i.) ; and the Parliament itself is the sole judge of the extent to
which it is necessary to vest in the Inter-State Commission the power of adjudicating
upon and atlministering such laws. Practically the whole administration of the law
upon this vast subject, and a great part of the judicial work in connection therewith,
could be entrusted to the Commission. The only express limitation upon the power of
the Parliament in this respect is in the proAision (sec. 73) that there is an appeal from
the Inter-State Commission to the High Court on questions of law ; and even this right
of appeal is subject to exceptions and regulations prescribed by the Parliament. (See
Xotes, § 307, mipra.)

The general functions which may be assigned to the Inter-State Commission are
defined in this section ; whilst certain special judicial functions with regard to prefer-
ences and discriminations on State railwaj-s are referred to in sees. 102, 104. It is
perhaps unnecessarj' to repeat that the latter functions, though the Convention Debates
concerning the Commission are almost wholly occupied with them, are only a part of the
wide powers which can be conferred under this section.

Parliament may forbid preferences by States.

102. The Parliament may*-^ by any law with respect to
trade or commerce*'-" forbid*-^, as to railways*^, any preference
or discrimination*^ by any State, or by any authority
constituted under a State, if such preference or discrimination
is undue and unreasonable, or unjust to any State*^^; due
regard being had*^"- to the financial responsibilities incurred by
any State in connexion with the construction and main-
tenance of its railways. But no preference or discrimination
shall, within the meaning of this section, be taken to be
undue and unreasonable, or unjust to any State, unless so
adjudged by the Inter-State Commission*^.

Historical Note. — ^The only provision in the Bill of 1891 against preferences bj-
States was a clause empowering the Parliament to annul any State law or regulation
"having the effect of derogating from freedom of trade or commerce between the
different parts of the Commonwealth." Upon the "trade and commerce" sub-clause
the question arose in the Sydney Convention of 1891 whether there was power to
regulate railway rates on intercolonial lines ; and upon the sub-clause dealing with
•' control of railway's with respect to transport for the purposes of the Commonwealth,"
Mr. Gordon moved to add " and the regulation of traffic and traffic charges upon
railways in any State in all cases in which such regulations are required for freedom of
trade and commerce, and to prevent any undue preference to any particular locality

902 COMMENTARIES OX THE CONSTITUTION. [See. 102.

within the Commonwealth or to any description of traflBc." The proposal was criticized
as being too wide, and was negatived by 21 votes to 11. An amendment by Mr. Inglis
Clark, for the prevention of discriminating rates giving any preference or advantage,
was also negatived. (Conv. Deb., Syd., 1891, pp. 662-70, 692-8.)

Adelaide Se-saion, 1897. — In the Bill as drafted at Adelaide there was added to the
•* preference" clause (see Hist. Note to sec. 99) a prohibition of State laws or regulations
having the effect of derogating from freedom of inter-state trade. Mr. Gordon moved
to add to this " or having the effect of inducing trade or commerce in any particular
direction within the Commonwealth unfairly, and in particular by one part of the
Commonwealth offering greater inducements than other parts wherever the inducement
offered returns no direct profit as regards the particular trade or commerce induced to
that part of the Commonwealth offering the inducement." This he afterwards withdrew.
(See pp. 178-180, supra; Conv. Deb., Adel., pp. 1070-85, 1103-1.3, 1117-40.)

The clause dealing with the powers of the Inter-State Commission (see Hist. Note
to sec. 101) provided, as originally drafted, that the Commission should have "no
powers in reference to the rates or regulations of any railway in any State, except in
cases of rates or regulations preferential in effect and made and used for the purpose of
drawing traffic to that railway from the railway of a neighbouring State." Sir Geo.
Turner feared that these words would check Victoria's " short haul" competition, but
leave New South Wales absolutely untouched, and they were struck out. (See pp.
178-180, supra.)

Melbourne Session, 1898 (Debates, pp. 1250-1506, 1510-12, 2390-1).— Mr. Barton
moved a comprehensive clause forbidding all preferences by the Commonwealth or a
State (see notes to sec. 99). A long debate followed (see pp. 199-200, supra), in which
distinctions were drawn between obstructive rates, which derogated from freedom of
trade ; unfairly attractive rates, which derogated from equality of trade ; and fair
development rates, which might be differential, but whose object was to promote trade,
not to divert it. The problem was to pi-event preferential or differential rates of an
unfederal character, whilst allowing such differential rates as were necessary to an
effective railway policy. Mr. Higgins (Debates, p. 1270) moved an amendment to
prohibit rates made " with the view of attracting trade to ports of one State against
ports of another State ;" but this was negatived. A suggestion by the Legislative Council
of South Australia (identical with Mr. Gordon's Adelaide amendment) was also
negatived.

Finally the clause was struck out (Debates, p. 13.35), and Mr. Barton proposed to
substitute a simple prohibition of Commonwealth preferences (see Hist. Note to sec. 99).
An amendment by Sir John Downer, to extend the clause to preferences by States,
was negatived. An amendment by Mr. Higgins, to prohibit rates made with a view of
attracting trade, was carried by 18 votes to 15. Mr. Higgins' object was to prevent
rates which, though not " preferential," were unfairly differential ; but the New South
Wales representatives complained that the words were far too wide, and Mr. Reid
moved an amendment to prevent interference with rates arranged "so as to secure
payment of working expenses and interest upon the cost of construction." The debate
became heated, and the Convention found itself in a difficulty. Mr. Reid's amendment
was negatived ; but the proposition carried by Mr. Higgins caused so much dissatisfaction
that it was decided to reconsider the whole question.

The clause was postponed, and Sir Geo. Turner (Debates, p. 1372) came to the rescue
with a new clause empowering the Parliament to execute, the trade and commerce
provisions upon State railways, "and particularly to forbid such preferences and
discriminations as it may deem to be undue and unreasonable, ov imjust to any State. "
A long debate ensued, chiefly on the question whether Parliament was a suitable tribunal
to decide this matter (see p. 200, supra) ; but eventually the clause— with the omission
of the word "particularly" — was carried, by 25 votes to 16. Mr. Barton's clause was

§§425-427. FINANCE AND TRADE. 903

then reconsidered, and the amendment carried by Mr. Higgins — being now superseded
by Sir Geo. Turner's clause — was struck out. A aeries of amendments were then moved
(see pp. 200-202, supra) which, after long discussion, were withdrawn to be proposed as
separate clauses. Mr. Grant's " Development" clause ^see Hist. Note to sec. 104) was
carried; and then (Debates, pp. 1510-2) the following clause by Mr. Reid was agreed
to:—

" Due consideration shall be given to the financial responsibility incurred in
connection with the construction and working expenses of State railways."

On the second recommittal, Mr. Barton brought up a redraft of the clauses,
practically in their present form. Mr. Glynn (for Mr. Higgins) moved to add "or
differential rate " after " preference or discrimination," contending that " discrimination"
applied onl}' to persons and things ; but Mr. O'Connor argued that it covered localities
also, and the amendment was negatived. Sir Geo. Turner proposed to substitute " the
Parliament " for " the Inter-State Commission," but this also was negatived by 22 votes
to 15, and the clause was agreed to.

§ 426. "The Parliament May."

This section, though enabling in form, is really restrictive in eflfect. It was held in
Inter-State C.C. v. Brimson, 154 U.S. 447, that the Congress of the United States has
plenary power, subject to the limitations imposed by the Constitution, to prescribe the
rule by which commerce among the several States was to be governed ; and it was said to
be indisputable that the prohibition of unjust charges, discriminations, or preferences
by carriers engaged in inter-state commerce was a proper regulation. In this Constitu-
tion, State railways are expressly made subject to the trade and commerce power ; so it
would appear that the power to. prohibit unjust charges would exist independently of
this section.

The object of the section is partly to ensure the existence of such powers ; but
chiefly to ensure their limitation. At Adelaide (see Historical Xote) the clause was
originally drawn in a restrictive form ; and when it was afterwards altered at Melbourne
to an enabling form, it was hedged round with the restrictions, express and implied,
contained in this section and sec. 104.
The express limitations are : —

(1.) That due regard must be had to the financial responsibilities incurred by
any State in connection with the construction and maintenance of its
railways.
(2.) That no preference or discrimination shaU be taken to be undue and
unreasonable, or unjust to any State, unless so adjudged by the Inter-
State Commission.
(3. ) That a rate upon a State railway cannot be declared unlaAvful if it is deemed
by the Inter-State Commission to be necessary for the development of
the territory of a State, and if the rate applies equally to goods within
the State and to goods passing into the State from other States.
The implied limitations seem to be : —

(1.) That the Parliament cannot, upon State railways, forbid any charge which

is not either a preference or a discrimination.
(2.) That the Parliament cannot forbid a preference or discrimination except on
the ground that it is undue and unreasonable, or unjust to a State.

.§ 427. " By Any Law with Respect to Trade and
Commerce."

The power defined by this section is a part of the general power to make laws with
respect to trade and commerce, and is therefore restricted to " trade and commerce with
other countries, and among the States." With rates or the purely internal traffic of a
State the Federal Parliament has nothing to do.

904 COMMENTARIES ON THE CONSTITUTION. [Sec. 102.

A number of American authorities defining inter-state commerce have already been
cited (Note, § 163, supra); but in none of the American cases did the distinction between
inter-state and internal commerce arise in precisely the same way as it is likely to arise
under this section ; and it would seem that some of the definitions may have to be
modified to carry out the true principle of the distinction. It will be convenient to
repeat here a few of the leading definitions.

" Comprehensive as the word ' among ' is, it may very properly be restricted to that
commerce which concerns more States than one." (Per Marshall, C. J., Gibbons v. Ogden,
9 Wheat. 1.)

'* When goods, the product of a State, have begun to be transported from that State
to another State, and not till then, they have become the subjects of inter-state commerce,
and, as such, are subject to national regulation, and cease to be taxable by the State of
their origin." (Coe v. Errol, 116 U.S. 517.)

" Transportation of goods under one control and by one voyage from a point in one
State to a point in another is inter-state commerce, and subject to the exclusive regulation
of Congress. A statute of a State, intended to regulate or to tax or to restrict such
traffic, cannot be enacted by a State, even in the absence of legislation by Congress ; and
such statutes are void even as to that part of the transmission which may be within the
State." (Wabash, &c., R. Co., v. Illinois, 118 U.S. 557.)

One of the mischiefs which this section is intended to meet is undue competition, bj^
means of discriminating rates on State railways, for the traffic of particular localities.
Now, when the effect of such a rate, made upon railways of any State, is to secure the
traffic for the ports of that State, and thus prevent its flowing to the ports of another
State, it maj' be argued, from such dicta as those above quoted from Coe v. Errol, and
W^abash R. Co. v. Illinois, that the trade thus retained within the limits of a State is not
inter-state trade at all, because it has not "begun to be transported from that State to-
another State." It was clearly, however, the intention of the Convention that trade
which by a discriminating rate was prevented from flowing to the ports of another State
should be considered as inter-state trade ; and it is equally clear that it comes within Chief
Justice Marshall's broad definition, " commerce which concerns more States than one."'
The State which is discriminated against is concerned because the discriminating rate
prevents transportation to that State from the other ; and the State which prevents that
transportation cannot be heard to say that the discrimination does not affect inter-state
trade. Traffic which would, but for an undue discrimination, flow from one State to
another, is clearly inter-state trade within the contemplation of this section. It is to be
noticed that in none of the American decisions does the question arise whether the
discriminating rate prevents the traffic from crossing a State boundary ; the question in
every case was whether the particular commerce in question was or was not subject to
State taxation or State regulation.

§ 428. "Forbid."

The widest and simplest way in which the Parliament could exercise its power of
prohibition would be by a law following the words of this section, and so occupying the
whole field. It is clear, however, that the Parliament is not restricted to the alternatives
of exercising all the power or none. It may legislate to prevent personal preference*
and discriminations only, or preferences and discriminations only which are unjust to
any State. It need not forbid all preferences and discriminations which are undue, &c. ;
it may forbid aiiy preference or discrimination which is undue, &c.

It is equally clear, however, that the Parliament has no power to define or interpret
what constitutes a preference. If the Parliament departs from the words of the section,
and attempts to forbid, in general terms, particular kinds of rates, such as low long-haul
rates, or group rates or terminal charges, it will be powerless to make such rates
preferential unless they are, in fact and in law, preferential. And if the Parliament
prohibits a general class of rates which, Qua that class, are not necessarily preferential,
it will run the risk of the whole law being declared void by the High Court. It does
not seem, however, that any exception could be taken to a law which prohibited a special

§§429 430.] FINANCE AND TRADE. 905

kind of rate— for instance, a less charge for a long-haul than for a short-haul — " so far
as the same may be a preference or discrimination which is undue and unreasonable, or
unjust to any State."

§ 429. '' As to Railways."

Private Railways. — That this section applies to the Government railways of the
States, whether controlled directly by the Executive Ciovernment of the State, or vested
in a corporate bod\- of Railway Commissioners, is clear. It seems that the subsequent
words, referring to preferences made " by any authority constituted under a State," are
wide enough to include not onl}- Railway- Commissioners, but also railway companies
incorporated by an Act of the Parliament of a State. The only importance of the
• question seems to be that if privately-owned railways are not included in this section,
they will be subject to the fiill operation of the trswle and commerce power, without
limitations which are placed by this section upon the power of the Parliament.

Railways of the Commoxwealth. — This section does not apply to railways of the
Commonwealth. In the event of railways being owned by the Federal Government, the
Parliament could of course impose what prohibitions it pleased ; but the Constitution
itself imposes an absolute prohibition against any preference whatever being given by
the Commonwealth to any State. (See sec. 99, and Notes, § 414, supra. )

§ 430. " Preference or Discrimination.'"

History of the Words. — The phrases •' undue preference,*" " unjust discrimina-
tion,'* and so forth, have a history in English and American legislation, and in the
judicial decisions of those countries, from which it is impossible to disassociate them,
and which forms a valuable aid to the interpretation of the words in this Constitution.
It has been held in the Supreme Court of the United States, with respect to these same
words, that so far as Congress, in the Inter-State Commerce Act, adopted the language
of the English Railwaj' and Canal Traffic Act, it is to be presumed that it had in mind the
construction given by the English courts to the adopted language, and intended to incor-
porate it into the Act. (Inter-State C.C. r. Baltimore, &c., R. Co., 145 U.S. 263.
See Texas and Pacific R. Co. v. Inter-State C.C, 162 U.S. 197.)

English Legislation. — When railways were first authorized in England, it was
expected that the railways would be public highways like turnpikes or canals ; that the
companies would merely provide the highway, and take toll for its use ; and that the
public, or carriers, would employ their own locomotives, carriages, and waggons — ^just
as on roads and canals they employed their own horses, coaches, carts, and (sometimes)
barges. (Grierson, Railway Rates, pp. 71, 94 ; Hadley, Railroad Transportation,
p. 165.) It has been said by Wills, J., that "no proper understanding of a good deal
of our railway legislation, and pre-eminently of clauses relating to tolls or charges, can
be arrived at, imless it (this notion) is firmly grasped and kept steadily in view." (HaU
V. London Brighton, &c., R. Co., 15 Q.B.D. at p. 536.) Accordingly the early railway
Acts required equal mileage rates — the same charge per ton per mile, on all parts of the
line, for the same class of goods.

It soon became clear, however, that this anticipation was a mistake, and that three
cases had to be provided for, on railways, as on canals : — (1) where the railway com-
panies simply provided the highway and took tolls for its use ; (2) where the railway
companies, without being carriers, pro\-ided tracks and locomotives ; (3) where the
companies were common carriers upon their o'vn highway. (Grierson, Railway Rates,
p. 94. ) Accordingly by the Railway Clauses Consolidation Act, 1845 (8 and 9 Vic. c,
20, sec. 90) the prohibition against differential rates Mas repealed. It was recited to be
expedient that companies should have power to vary the tolls upon their lines "so as
to accommodate them to the circumstances of the traffic," but that this power " should
not be used for the pui-pose of prejudicing or favouring particular parties, or for the

906 COMMENTARIES ON THE CONSTITUTION. [See. 102.

purpose of coUusively and unfairly creating a monopoly, either in the hands of the
company or of particular parties." It was therefore enacted that companies might alter
or vary the tolls authorized by their special Acts, either upon the whole or any part of
the railway ; " Provided that all such tolls be at all times charged equally to all persons
and after the same rate, whether per ton, per mile, or otherwise, in respect of all pas-
sengers and of all goods or carriages of the same description, and conveyed or propelled
by a like carriage or engine, passing only over the same portion of the line of railway
under the same circumstances ; and no reduction or advance in any sucli tolls shall be
made either directly or indirectly in favour of or against any particular companj' or
person travelling upon or using the railwa}\"

This section — the "equality clause," as it is called— only applies where circum-
stances are absolutely the same ; and then it requires an absolutely rigid equality. It is
immaterial that the allowance is made to meet competition. (London and N.W.R. Co.
V. Evershed, 3 Q.B.D. 134 ; 3 App. Ca. 1029 ; and see Phipps v. London and N.W.R. Co.
[1S92] 2 Q.B at p. 249.) A carrier cannot be charged higher rates than other members
of the public. (Great Western R. Co. v. Sutton, L.R. 4 H L. 226 ; see Ford v. London
and S.W.R. Co., 60 L.J. Q.B. 130.) But the proviso only applies to goods carried
between the same points of arrival and departure, and does not forbid a uniform charge
from different points, or disproportionate rates for unequal distances. (Denaby Main
Colliery Co. v. Manchester, &c. R. Co., II App. Ca. 97.)

The Railway and Canal Traffic Act, 1854 (17 and 18 Vic. c. 31, sec. 2), provides that
no railway or canal company " shall make or give any undue or unreasonable preference
or advantage to or in favour of any particular person or company, or any particular
description of traffic, in any respect whatever, nor shall any such company subject any
particular person or company, or any particular description of traffic, to any undue or
unreasonable prejudice or disadvantage in any respect whatever."

This section has been supplemented by the Railway and Canal Traffic Act, 1888 (51
and 52 Vic. c. 25). Sec. 27, sub-s. i. of that Act, provides that whenever it is shown
that a railway company makes any difference in treatment to any trader or class of
traders, or to the traders in any district in respect of the same or similar merchandise,
or the same or similar services, the burden of proving that the difference in treatment is
not an undue preference is on the company. Sub-sec. ii. enacts that in deciding whether
a lower charge or difference in treatment is an undue prefei'ence, the Court or the
Commissioners may, if they think it reasonable, take into consideration whether the
lower charge, or difference in treatment, is necessary for securing, in the interests of the
public, the traffic in respect of which it is made, and whether the inequality is not
removable without unduly reducing the rates charged to the complainant ; with the
proviso that no railway shall make, nor shall the Court or the Commissioners sanction, any
difference in the rates for, or any difference in the treatment of, home and foi-eign
merchandise, in respect of the same or similar services. (For comparison with the
"development" clause of this Constitution, see Note, § 437, in/rq,). Sub-sec. iii. deals
with the question of long and short hauls. It provides that " the Court or the
Commissioners shall have power to direct that no higher charge shall be made to any
person for services in respect of merchandise carried over a less distance than is made
to any other person for similar services in respect of the like description and quality of
merchandise carried over a greater distance on the same line of railway." Sec. 29 deals
with "group rates." It provides that any railway company may group together any
places in the same district, situated at various distances from any point of destination or
departure, and charge a uniform rate to and from any place in the group, provided that
the distance shall not bo unreasonable and that the group rates and the places grouped
together shall not be such as to create an undue preference.

Sec. 55 defines an " undue preference " for the purpose of the Act, as including " an
undue preference, or an undue or unreasonable prejudice or di.sad vantage, in any respect,
in favour of or against any person or particular class of persons or any particular
description of traffic."

^430.] FINANCE AND TRADE. 907

The decisions on the Act of 18o4, first by the Court of Common Pleas, and then by
the Railway Commissioners and the Court of Appeal, show a considerable difficulty in
fixing the principles upon which the reasonableness of a rate is to be determined. It has
been clearly settled, however, that the fact that a trader has access to a competing route
for his goods may be taken into consideration in deciding whether lower rates constitute
an undue preference ; and that the question whether a preference is undue or unreason-
able is a question of fact in each particular case. (Phipps v. London and X.W.R. Co.
(1892], 2 Q B 229.) For the decisions of the Railway Commissioners, see Annual
Reports of the Railway Commissioners (Pari. Papers) ; and for comments on some of
them, see Griersou, Railway Rates, pp. 173-8 ; Hadle\', Railroad Transportation, pp.
182-5. It will be convenient here to cite the decisions which bear on the interpre-
tation of the Act of 1834, and to quote extracts from some of the judgments.

The Court may take into consideration the fair interests of the railway itself, and
entertain such questions as whether the Company might not carry larger quantities, or
for longer distances, at lower rates per ton per mile than smaller quantities, or for
shorter distances, so as to derive equal profits to itself. A rate for one company's coal,
to compete with coals of another merchant partly sea-borne, held an undue preference.
Ransonie v. Eastern Counties R. Co. [1857], 2d L.J. C.P. 91.)

A railway company made a special rate with certain merchants "in order to intro-
<luce the northern coke into Staffordshire." Held that this was no legitimate ground for
a preference, and that lowering rates for that purpose, there being nothing to show that
the pecuniary interests of the company were atfected, was an undue preference. (Oxlade
r. Eastern Counties R. Co. [1857], 26 L.J. C P. 129.)

A railway company is justified in carrying goods for one person at a less rate than
for another if there be circumstances which render the cost of carrying for the former
less than for the latter. (Id. )

Excluding the omnibus of one omnibus proprietor from within the station gates, and
admitting another, no justifying circumstances being shown, held an undue and
unreasonable preference. Inconvenience to pas-^sengers was relied on as one element.
{Marriott v. London and X.W.R. Co, [1857], 26 L.J. C.P. 154.)

Where a companj' gave a cab proprietor, for a consideration, an exclusive right to
stand at the station, no public inconvenience being shown, no injunction was granted.
(Beadell r. Eastern Counties R. Co. [1857], 26 L.J. C.P. 250 ; and see cases cited Dig.
Eng. Case Law, iii. 138.)

Carrying coals from one colliery at a lower rate than from another in the same
locality, in consequence of a threat from the owner of the first colliery to construct
another railway, is an undue preference. (Harris v. Cockermouth, &c., R. Co. [1858],
27 L.J. C.P. 162.)

A scale of charges for carriage of coal from two points, the efiect of which was to
diminish the natural advantages of dealers at one point, by aiuiihilating, in point of
expense of carriage, a portion of the distance, held an unreasonable preference.
(Ransome v. Eastern Counties R. Co. [1858], 27 L.J. C.P. 166.)

" The effect of such a scale of charges is to diminish the natural advantages which
the position of the dealers at Ipswich, by rea.«son of its greater proximity, gives them
over the dealers at Peterborough, in respect of the traffic at Thurston, &c., ... by
annihilating, in point of expense of carriage, a certain portion of the distance between
Peterborough and those places ; and just in proportion bj- which that natural advantage
is diminished, an undue preference is given to the Peterborough dealers, and an undue
disadvantage is brought upon the complainants and the other Ipswich dealers." (Per
Williams, J , id. at p. 169.)

The words "undue" and "unreasonable" imply that there may be advantage to
one person or one class of traffic, and prejudice to another, which would not be within
the .Act. It is not undue or unreasonable for a railway company to carry goods for A at
a lower rate than for B, in consideration of A's guarantee of large quantities and full
loads at regular periods (provided that the object of the company te to obtain thereby a
greater profit by the diminished cost of carriage) although the effect may be to exclude B
from the lower rate. (Nicholson i-. Great Western R. Co., 1859, 28 L..t. C.P. 89.)

A railway company' may make special agreements securing advantages to individuals,
where it clearly appears that the company has in view only the interests of the pro-
prietors and the legitimate increase of the profits of the railway, and the consideration
given to the company in return for the advantages is adecjua'te, and the company is
willing to afford the same facilities to all others upon equal terms. (Id.)

908 COMMENTARIES ON THE CONSTITUTION. [Sec. 102.

A preference to a customer who engaged to employ other lines of the companj', for
traffic distinct from and unconnected with the goods in question, was held unreasonable.
(Baxendale v. Great Western R. Co., 1859, 28 L.J. C.P. 69.)

A company charged rates inclusive of delivery charges, in order to compel
customers to employ them as carriers, apart from their line of railway. Held an uncfue-
preference to themselves. (Baxendale v. Great W.R. Co., 1859, 28 L.J. C.P. 81 ;
Garton v. Great W.R. Co., id., 158.)

A facility given to one carrier by receiving goods at a later hour is an undue
prejudice to others. (Garton v. Bristol, &c. , R. Co., 1859, 28 L.J. C.P. 306.)

A deduction to certain persons, in consideration of their contracting to consign all
goods by the railway, and not by water or other means, is an undue preference, unless
it be clearly shown that it is done to prevent a competition with the railway, or that
there is secured thereby to the company such an amount of traffic as to compensate for
the reduction. Bona fide competition, held out to the public generally, mifjht be good.
(Id.)

A reduced rate for a full trainload is good, though the company, for its own con-
venience, divides the trainload If the rate is valid, the mode of carriage is immaterial.
(Ransome v. Eastern Counties R. Co., 1860, 29 L.J. C.P. 329.)

The gratuitous cartage of the goods of one firm, though done bona fide to meet
competition and at a profit on the whole carriage, is an undue preference. (London and
N.W.R. Co. V. Evershed, 1877, 2 Q.B.D. 254 ; 3 Q.B.D. 134 ; 3 App. Ca. 1029.)

" We are of opinion that the gratuitous cartage and the allowance of rebate granted
by the defendants to the three brewing firms mentioned in the case, but not granted to
the plaintiffs, although made bona fide for the simple purpose of attracting their traffic
to the defendants' line of railway, in lieu of its being sent by competing lines, and
although such traffic realized a profit to the defendants notwithstanding such an allowance
or rebate, did under the circumstances amount to an undue preference or advantage
given to them by the defendants' company, and is contrary to the language and meaning
of the equality clause, 8 and 9 Vic. c. 20, s. 90, and also of 17 and 18 Vic. c. 31, s. 2."
(Per Mellor, J., 2 Q.B.D. at p. 265.)

" We think that a railway company cannot, merelj'^ for the sake of increasing their
traffic, reduce their rates in favour of individual customers, unless, at all events, there
is a sufficient reason for such reduction, which shall lessen the cost to the company of
the conveyance of their traffic, or some other equivalent or other services are rendered
to them by such individuals in relation to such traffic." (Id. at p. 267.)

Group Bates. — A railway company carried coals to a point, from a group of collieries
at diflferent distances along the same line, at the same rate. In an action for overcharge,
it was held by the Court of Appeal and by the House of Lords, overruling the Queen's
Bench Division, that this was not a breach of the equality clause, and that no action for
an overcharge lay for an undue preference. (Denaby Main Colliery v. Manchester, &c.,
R. Co., 1883, 13 Q.B.D. 674, 14 Q.B.D. 209, 11 App. Ca. 97.)

By sec. 29 of the Railway and Canal Traffic Act, 1888 (see p. 906, supra), it i&
pi'ovided that a railway company may group together places in the same district,
situated at various distances from any point of destination or departure, and charge
uniform rates to and from all places within the group, provided that the distance is not
unreasonable, and the group rates charged are not such as to create an undue preference.

The works of the applicant were on the line of the Furness R. Co., 18 miles from a
junction. Other similar works were situated on the same line, 38 miles from the
junction. The company grouped these works together and charged them a imiforni
rate, except that the applicants were charged sixpence a ton less for coke. Held, that
so, far as the rate for coke was concerned, the company had made sufficient allowance ;
but as regards the other rates, the places grouped were so far apart that there was an
undue prefel-ence. (North Lonsdale Iron Co. v. Furness R. Co., 1891, 60 L.J. Q.B. 419.
See also Newry v. Great Northern R. Co. , 7 Ry. and Can. Traffic Cas. 184 ; cited Dig.
Eng. Case Law, iii. 146.)

Competition. — The fact that a trader has access to a competing route for the
carriage of his goods may be taken into consideration in deciding whether lower rates
charged to such trader are an undue preference. (Phipps v. London and N.W.R. Co,
1892, 2 Q.B. 229.)

" The second section of the Act of 1854 does not afford to the tribunal any kind of
guide as to what is undue or unreasonable. It is left entirely to the judgment of the
court on a review of the circumstances. Can we say that the local situation of one
trader, as compared with another, which enables him, by having two competing routes to
enforce upon the carrier by either of those routes a certain amount of compliance with

^430.] FINANCE AND TRADE. 909

his demands, which would be impossible if he did not enjoy that advantage, is not
among the circumstances which may be taken into consideration? I am looking at the
<luestion now as between trader and trader. It is said that it is unfair to the trader
who is nearer the market that he should not enjoy the fidl benefit of the advantage to
be derived from his geographical situation at a point on the railway nearer the market
than his fellow trader who trades at a point more distant ; but I cannot see, looking at
the matter as between the two traders, why the advantageous position of the one trader
in having his works so placed that he has two competing routes is not as much a
circumstance to be taken into consideration as the geographical position of the other
trader, who, though he has not the advantage of competition, is situated at a point on
the line geographically nearer the market. Why the local situation in regard to its
proximity to the market is to be the only consideration to be taken into account in
dealing with the question as a matter of what is reasonable and right as between the two
traders, I cannot understand. Of course, if you are to exclude this from consideration
altogether, the result must inevitably be to deprive the trader who has the two
competing routes of a certain amount of the advantage which he derives from that
favourable position of his works. All that I have to say is that I cannot find anything
in the Act which indicates that when you are left at large, for you are left at large, as
to whether as between two traders the company is showing an undue and unreasonable
preference to the one as compared with the other, you are to leave that circumstance
out of consideration any more than any other circumstance which would affect men's
minds." (Per Lord Herschell, id. p. 242.)

" It seems to me that, whether you look at the Act of 1854 by itself, or whether
you look at it in connection \*ith the provisions of sub-sec. 2 of sec. 27 of the Act of
1888, to which I have been referring, it is impossible to say that there is anything in
point of law, which compels the tribunal to exclude from consideration this question of
competing routes. 1 do not go further than that. It is not necessary to go further than
that. I am not for a moment suggesting to what extent it is to weigh. I am not
suggesting that ihere may not be such an excessive difference in charge made in cases of
competition, as that it would be unreasonable and unfair when you are looking at the
position of the one trader as compared with the other. That may be so, but all that is
matter for the tribunal to take into account, and certainly I think that they are entitled
to take it into account, and to give weight to it as far as is reasonable. If that be so^ it
is of course sufficient to dispose of the present case." (Per Lord Herschell, id. pp. 24o-6. )

" Now, the appeal here is put, as it must be put, upon a question of law — viz.,
whether there is any rule which compels us to say that the Commissioners had no right
to take into their consideration the fact that Butlins and Islip had two routes of commu-
nication westward instead of one. It appears to me that there is no such rule, and
I cannot help thinking it would be extremely unreasonable if there were. tipon
what principle of good sense can any business man or anybody else exclude from his
consideration the locality of either place ? If there is a physical difference in favour of
one or the other, or an artificial difference by reason of the facilities of traflSc, whether
by sea or bj- land, why is not everything which is material to be taken into account, and
upon what principle can it be said that you are to exclude from consideration one of
the main elements in the case?" (Per Lindley, L.J. id. pp. 2.50-1.)

" I think it is clear that the section implies that there may be a preference, and
that it does not make every inequality of charge an undue preference Of course, if the
circumstances so differ that the difference of charge is in exact conformity with the
difference of circumstances, there would be no preference at all. But, as has been
pointed out before, what the' section provides is that there shall not be an undue or
unreasonable preference or prejudice. And it cannot be doubted that whether in
particular instances there has been an undue or unreasonable prejudice is a question of
fact. In Palmer v. London and South Western Ry. Co., Erie, C.J., said : ' 1 beg to say
that the argument from authority seems to me to be without conclusive force in guiding
the exercise of this jurisdiction ; the question whether undue prejudice has been caused,
being a question of fact depending on the matters proved in each case.' In Denaby
Main Colliery Co. v. Manchester. &c., R. Co., when it was before the Court of Appeal,
not in the action brought by the Denaby company against the railway company, but on
an appeal arising out of the proceetlings before the Railway Commissioners, Lord Selborne,
then Lord Chancellor, said at p. 441 : ' They gave a decided, distinct, and great
advantage, as it appears to me. to the distant collieries. That may be due or undue,
reasonable or unreasonable, but under the circumstances is not the reasonableness a

auestion of fact ? Is not it a question of fact and not of law whether such preference is
ue or undue ? Unless you could point to some other law which defines what shall be
held to be reasonable or unreasonable, it must be and is a mere question, not of law,
but of fact.' The Lord Chancellor there points out that the mere circumstance that
there is an advantage does not of itself show that it is an undue preference within the

910 COMMENTARIES ON THE CONSTITUTION. [Sec. 102.

meaning of the Act, and further that whether there be such an undue preference or
advantage is a question of fact, and of fact alone. No rule is given to guide the Court
or the tribunal in the determination of cases or applications made under the 2nd section
of the Act of 1854. I'he conclusion is one of fact, to be arrived at looking at the matter
broadly and applying common sense to the facts that are proved I quite agree with
Wills, J., that it is impossible to exercise a jurisdiction, such as is conferred by this
section, by any process of mere mathematical or arithmetical calculation. When you
have a variety of cii'cumstances differing in the two cases, you cannot say that such a
difference of circumstances represents or is equivalent to such a fraction of a penny
difference of charge in the one case as compared with the other. A much broader view
must be taken, and it would be hopeless to seek to decide a case by any attempted
calculation. I should say that the decision must be arrived at broadly and fairly,
looking at all the circumstances of the case, that is, looking at all the circumstances
which are proper to be looked at." (Per Lord Herschell, id. pp. 236-8.)

" What is an undue preference ? Now, if you look at the sections which relate to this
matter, beginning with the equality claiise, s. 90 of the Act of 1845, s. 2 of the Act of
1854, and this s. 27 of the Act of 1888, you find these expressions used, all of which
appear to me to point to the same sort of mischief. You have ' undue ' or ' unreason-
able,' or 'unfair' 'preference,' or 'prejudice,' or 'disadvantage,' or ' favour.' What is
undue, &c., is a question of degree, and being a question of degree, it is obviously a
question of fact, and if it is a question of fact, there is no appeal." (Per Lindle^', L.J.,
ia. pp 251-2 )

Home and Foreign Merchandise. — The Railway and Canal Traffic Act, 1888 (51 and
52 Vic. c. 25) s. 27 sub-s. 3, which empowers the Commissioners to take into consideration
whether a rate is necessary "for securing, in the interests of the public, the traffic,"
contains a proviso "that no railwaj' company shall make, nor shall . . . the
Commissioners sanction, any difference in the tolls, rates, or charges made for, or any
difference in the treatment of, home and foreign merchandise, in respect of the same or
similar services." Held that the effect of this proviso is not to prohibit all inequalities
in rates as between home and foreign merchandise, but that, if the railway company has
proved facts which would justify the admitted differences, had the goods in question
been home goods, the company is not debarred from relying on those facts as an answer,
merely because the goods which receive the benefit of the provision are of foreign origin.
(Mansion House Association t'. London and S. W.R. Co. [1895] 1 Q.B. 927.)

American Inter-State Commerce Act. — In 1887 the Congress of the United States
passed the Inter-State Commerce Act, which was adapted from, and to a large extent
followed the language of, the English Acts of 1854 and 1873.

The Act applies to any common carrier engaged in the transportation of passengers
or property wholly by railroad, or partly by railroad and partly by ^vater, when both
are used under a common control, management, or arrangement, for a continuous
carriage, or shipment, from one State or Territory of the United States to another, or
between any place in the United States and a foreign country. It does not apply to
transportation wholly within one State. " Transportation" includes all instrumentalities
of shipping or carriage. The Act first provides generally, that all charges made for an}*
service rendered in connection with transportation, or with the handling of property,
shall be reasonable and just ; and every unjust and unreasonable charge for such service
is prohibited and declared unlawful (sec. 1).

Sec. 2 provides that if any common carrier directly or indirectly, by any special
rate, rebate, drawback, or other device, charges any person a greater or less compensa-
tion for any such service than it charges any other person for a like and contemporaneous
service in the transportation of a like kind of traffic under substantially similar circum-
stances and conditions, the carrier is guilty of unjust discrimination, which is prohibited
and declared unlawful. (Cf. English " equality clause," Railwaj* Clauses Cons. Act,
1845, .s. 90.)

Sec. 3 makes it unlawful for a common carrier to make or give any undtie or
•unreasonable preference or advantage to any particular person, company, firm, corporation,
or any particular description of traffic, in any respect whatsoever, or to subject anj"
particular person, company, firm, corporation, or localitj', or any particular description
of traffic, to any undue or unreasonable prejudice or disadvantage in any respect what-
soever. It further provides that common carriei's shall afford proper and reasonable

§430.] FINANCE AND TRADE. 911

facilities for through traffic with connecting lines, and shall not discriminate in their
charges between such connecting lines. (Cf . Railway and Can. Traffic Act, 1 854, s. 2. )

Sec. 4 makes it unlawful for any common carrier to charge any greater compensation
in the aggregate lor the transportation of passengers or of the like kind of property,
under substantially similar ciicurastances and conditions, for a shorter than for a longer
distance over the same line in the same direction, the shorter being inchxded in the
longer distance ; but this is not to be construed as authorizing as great a compensation
for a shorter as for a longer distance. It is provided, however, that on application to
the Inter-State Commerce Commission, a carrier may in special cases, after investigation
by the Commission, be authorized to charge less for the long-haul than for the short-
haul, and the Commission may prescribe, from time to time, how far such caiTier may
be exempt from this section. (Cf. Railwaj- and Can. Traffic Act, 1888, s. 27 — iii.)

Sec. 5 prohibits combinations for the pooling of freights. Sec. 6 provides that
carriers shall print and publish schedules of their rates, stating separately the terminal
charges, &c. Sec. 8 provides that for any contravention of the Act a carrier shall be
liable to the person injured for the full amount of damages sustained. Sec. 9 enables
any person injured either to make complaint to the Commission or to sue for damages,
at his election, but not to pursue both remedies. Sec. 10 provides that any carrier, or
any director, officer, agent, or employee of a carrying company, who is privy to any
violation of the Act, is guilty of a misdemeanour, and liable to a Sne not exceeding
§5000 for each offence. The rest of the Act deals with the establishment and duties of
the Inter-State Commerce Commission. (See Note, § 423, tupra. )

" The principal objects of the Inter-State Commerce Act were to secure just and
reasonable charges for transportation ; to prohibit unjust discriminations in the
I'endition of like services under similar circumstances and conditions ; to prevent undue
or unreasonable preferences to persons, corporations, or localities ; to inhibit greater
compensation for a shorter than for a longer distance over the same line ; and to abolish
combinations for the pooling of freights. It was not designed, however, tQ prevent
competition between different roads, or to interfere with the customary arrangements
made by railway companies for reduced fares in consideration of increased mileage,
where !>uch reduction did not operate as an unjust discrimination against other persons
travelling over the road. In other words, it was not intended to ignore the principle
that one can sell at wholesale cheaper than at retail. It is not all discriminations or pre-
ferences that fall within the inhibition of the statute ; onl}' such as are unjust or
unreasonable." (Inter-State C.C. v. Baltimore, &c., R. Co., 145 U.S. at p. 276.)

Consequently a part3'-rate ticket for passengers is not a discrimination or preference ;
and see Texas and Pacific R. Co. y. Inter-State C.C, 162 U.S. 197.

" Subject to the two leading prohibitions that their charges shall not be unjust or
unreasonable, and that they shall not unjustly discriminate, so as to give undue prefer-
ence or advantage to ■ persons or traffic similarly circumstanced, the Act to Regulate
Commerce leaves common carriers as they were at the common law, free to make special
contracts looking to tlie increase of their business, to classify their traffic, to adjust and
apportion their rates so as to meet the necessities of commerce, and general!}- to manage
their important interests upon the same principles which are regarded as sound, and
adopted in other trades and pursuits." (Cincinnati, &c., R. Co. v. Inter-State C.C, 162
U.S. 184, at p. 197.)

" The conclusions of the court, drawn from the history and language of the Acts
under consideration, and from the decisions of the American and English courts, are : —
(1) That the purpose of the Act is to promote and facilitate commerce by the adoption
of regulations, to make charges for transportation just and reasonable, and to forbid
undue and unreasonable preferences. (2) That in passing upon questions arising under
this Act, the tribunal appointed to enforce its provisions, whether the Commission or
the courts, is empowered to fully consider all the circumstances and conditions that
reasonably applj' to the situation, and that, in the exercise of its jurisdiction, the
tribunal may and should consider the legitimate interests as well of the carrying com-
panies as of the traders and shippers, and in considering whether any particular locality
is subjected to an undue preference or disadvantage, the welfare of the communities
occupying the localities where the goods are delivered is to be considered as well as that
of the communities which are in the localitj- of the place of shipment. (3) That among
the circumstances and conditions to be considered, as well in the ease of traffic originat-
ing in foreign ports, as in the case of traffic originating within the limits of the United

912 COMMENTARIES ON THE CONSTITUTION. [Sec. 102.

States, competition that affects rates should be considered, and in deciding whether rates
and charges made at a low rate to secure foreign freights which would otherwise go by
other competitive routes are or are not undue and unjust, the fair interests of the carrier
company and the welfare of the community which is to receive and consume the com
modities are to be considered. (4) That if the Commission instead of confining its
action to redressing, on complaint made by some particular person, firm, or corporation,
or locality, some specific disregard by common carriers of provisions of the Act, pro-
poses to promulgate general orders, which thereby become rules of action to the carrying
companies, the spirit and letter of the Act require that such orders should have in view
the purpose of promoting and facilitating commerce, and the welfare of all to be
■affected, as well the carriers as the traders and consumers of the country." (Texas and
Pac. R. Co. V. Inter-State C.C, 162 U.S. 197.)

The mere fact that the disparity between through and local rates is considerable
does not necessarily constitute undue discrimination — especially if not complained of by
any one affected. (Texas v. Inter-State C.C, 162 U.S. 197.)

" A rate may be unreasonable because it is too low, as well as because it is too high.
In the former case it is unreasonable and unjust to the stockholder, and in the latter to
the shipper." (Inter-State C.C. v. Cincinnati R. Co., 167 U.S. at p. 511.)

The portion of a through rate received by one of several railway companies trans-
porting the goods as inter-state commerce may be less than its local rate. (Parsons v.
Chicago and N.W.R. Co., 167 U.S. 447.)

Competition is one of the most obvious and effective circumstances that make the
conditions imder which a long and a short haul is performed substantially dissimilar.
The following conclusions were affirmed : —

(I.) That competition between rival roul^es is one of the matters which may
lawfully be considered in making rates for inter-state commerce.

(2.) That essential dissimilarity of circumstances and conditions may justify
common carriers in charging greater compensation for the transportation
of like kinds of property for a shorter than for a longer distance over the
same line in such commerce. (Inter-State C.C. v. Alabama Midland R.
Co., 168 U.S. 144.)

The meaning of the previous decisions is that, under sec. 4, substantial competition
which materially affects transportation and rates may produce dissimilarity of circum-
stances and conditions which may justify a carrier, even without authority from the
Commission, in charging less for a longer than for a shorter haul. (Louisville and Nash-
ville R. Co. V. Behlmer [1900], 175 U.S. 648.)

Sec. 4 of the Act has in view only transportation by rail. Free cartage after
arrival does not concern the Commission. (Inter-State C.C. v. Detroit Grand Haven,
&c., R., 167 U.S. 633.)

Pbefekence or Discrimination. — Guided by the English and American authorities,
we may now proceed to discuss the meaning of the words " preference " and " discrimi-
nation " in this Constitution. Before any clear idea can be formed of what constitutes
a preference or discrimination which is undue and unreasonable, or unjust to any State,
it is necessary to obtain some definition of the words "preference" and "discrimi-
nation " themselves.

A preference is a setting of one person or thing before another ; here it means a
dissimilarity of treatment, involving advantage to one person, locality, or class of goods,
or prejudice to another. Discrimination is a difference of treatment ; as applied to
railways it is defined by Webster's Internat. Diet, as "the arbitrary imposition of
unequal tariffs for substantially the same service." In the English Railway and Canal
Traffic Act (see p. 906, supra) " preference " is applied to persons, and to descriptions of
traffic ; in the American Inter-State Commerce Act (see p. 910, supra) it is applied to
persons, descriptions of traffic, and localities. "Discriminations," in the Inter-State
Commerce Act, sec. 4, is applied to persons only, and means a departure from equal
treatment of persons in respect of substantially the same service. In sec. 5, discrimi-
nation between connecting lines is referred to. There seems, however, no reason why
the word "discrimination," used generally, should not apply as between localities and
descriptions of traffic, as well as between persons. Thus Hadley (Railroad Transpor-
tation, p. Ill) speaks of "the three forms of discrimination — between classes of

^W30.] FINANCE AND TRADE. 913

business, localities, or individuals." At least it is clear that the words "preference '
and "discrimination" together cover differences of treatment (1) as between different
persons ; (2) as between different descriptions of traffic ; and (3) as between different
localities. That is to say, the words include the unequal treatment of persons, the
arbitrary classification of goods, and the unequal treatment of localities.

The difficulty, however, is to get a satisfactory test of what constitutes a difference
of treatment. Where the circumstances are exactl}', or even substantially similar, the
difliculty disappears ; but where circumstances are dissimilar — as tliey must be between
different localities and different goods, and may be between different persons— a
difference due to the dissimilarity' of circumstances is not a discrimination at all ; and
the problem is to find out how far the difference of treatment is due to the dissimilarity
of circumstances. Before discussing the three kinds of discriminations, it ^nll be
necessary to allude briefly' to the chief principles of equality which have been laid down.
They may be shortly descril)ed as mileage, cost of service, and value of service.

(1.) Mileage. — The principle of equal mileage rates is now universally discarded. It
was never strictly applied except in connection with a classification of goods, which
gave some recognition to both cost and value of service. Even if the terminal charges
are assessed separately, equal mileage charges are quite unsuited to the requirements of
railway traffic. Mileage is in fact only one element arbitrarily selected as a test of the
cost of service ; it ignores other elements which may be equally important. (See
Grierson, Railwaj' Rates, pp. 13-20 ; Acworth, The Railways and the Traders, Chap. II.)

(2 ) Cost of Service. — The cost of the service is sometimes laid down as the true
principle on which rates should be based. That it is one important element cannot be
doubted. In the first place, however, it is practically impossible to estimate the
proportion of the total expenses of the railway which each article ought to bear.
" Broadly speaking, the cost of carriage, whether of passengers, or goods, is made up of
four different items : locomotive or movement expenses, terminals or station expenses,
maintenance of way and works, interest bn capital." (Acworth, The Railways and the
Traders, p. 24.) The permanent-way expenses are practically constant; manj' of the
Morking expenses var\- with the traffic. The apportionment of these among the
different classes of traffic must always be to a certain extent arbitrary.

But even if the cost of service were always ascertainable, it is not alwaj's a
practicable basis. In many cases " the traffic will not bear" rates based on the cost of
service, for the simple reason that the cost of the service — if a share of the interest on
the fixed capital is included— is greater than the value of the service. Yet if the traffic
cannot be had on other terms, it ma}' be profitable to carry it at a margin above working
expenses, and the public benefit resulting from the development of trade may be
enormous. (See Grierson, Railway Rates, pp. 8-12 ; Acworth, The Railways and the
Traders, Chap. I. ; Lewis, National Consolid. of Railways, Chap. V.)

(3.) Value of Service. — This basis, usually known as " charging what the traffic will
bear," is one which, with careful qualifications, is most favoured by scientific writers as
the true basis, but is sometimes used by railway companies as a pretext for " charging
what the traffic will not bear," or " bleeding the traffic to death." Charging what the
traffic will bear is the basis — or chief basis — of every system of classification of goods.
" Railroads divide their freight into four or more classes, the division being mainly
based on the value of the goods. Thus, dry goods are placed in the first class, and
lumber in the fourth ; and the charges on the former are made two or three times as
high as on the latter. There is a difference of cost of handling, and of risk ; but nothing
like so great as the difference in charge. The railroad does not base its classification
upon cost of service, but upon what the traffic will bear. A ton of lumber has so little
value that, if they attempted to charge the same rates for it as for the dry goods, they
would get none of it to carrj* ; the traffic would not bear the higher rate." (Hadley,
Railroad Transportation, p. 112.) The value of the service is of course affected by the
laws of supply and demand ; it varies with the value of the articles, and with the
58

914 COMMENTARIES ON THE CONSTITUTION. [Sec. 102.

facilities offered by competing modes of transit. (See Grierson, Railway Rates, pp.
68-77 ; Acworth, The Railways and the Traders, Chaps. III., IV. ; Lewis, National
Consolid. of Railways, Chap. V.)

In the case of Government Railways, the further element is introduced that the
proprietors of the railway represent also the public interests of the State, and that rates
may be fixed with a view to other things besides a direct profit on the railways, as a
business concern. "A Government enterprise may be managed on any one of four
principles : (1) as a tax; (2) for business profits; (3) to pay expenses; (4) for public
service, without much regard to the question of expense." (Hadley, Railroad
Transportation, p. 240.)

Having touched upon the chief principles of rate-making, we may recur to the
definition of a preference or discrimination as an arbitrary difference of treatment. An
arbitrary difference is one which is not based upon any satisfactory principle. So far as
any of the above principles are thought satisfactory, differences of rates based upon
their application will not be preferential or discriminating.

It should be noticed that whilst questions of reasonableness and unreasonableness
are questions of fact, the question whether the facts proved constitute a preference or
discrimination at all is a question of law. The interpretation of the words "preference"
and " discrimination " is, in the last resort, for the High Court ; and that court alone
can authoritatively decide the principles upon which the question of preference or no
preference is to be determined. If there is no preference, there can be no unreasonable
preference ; if there is a preference, whether it is reasonable or unreasonable is a
question of fact which the Inter-State Commission alone can decide.

(1.) Personal Discriminations. — Personal discriminations, when the facts are known,
are the easiest of all to decide. Between persons, as individuals, there is not likely to
be any serious discrimination by the States. Between classes of persons there might
conceivably arise cases of discrimination affecting inter-state traffic.

A law prohibiting discriminations does not ignore the principle that one can sell
wholesale cheaper than retail, so long as reductions are made impartially to all, under
the same circumstances. Consequently a party-rate ticket for passengers is not a
discrimination or preference. (Inter-State C.C. V.Baltimore, &c., R., 145 U.S. 263.
See Texas and Pac. R. Co. v. Inter-State C.C, 162 U.S. 197; Nicholson v. Great
Western R. Co., 28 L.J. C.P. 89 ; Hadley, Railroad Transportation, p. 119.)

(2. ) Discriminations between Classes of Traffic. —The classification of goods is the most
generally recognized form of departure from the principle of cost of ser\ice. Such
classification, if it is challenged by any person who is prejudiced, must, it is conceived,
be based upon some definite principle ; and that principle might, in the case of a State
railway, either be the value of the service to the producer or the importance of the
service to the public. It does not necessarily follow, because a class of business is done
at less than average rates, or even at less than the average cost, that such business is an
actual loss to the road, or that other business is taxed to make up for it. And still less
does it follow that there is a loss to the country. (Hadley, Railroad Transp. p. 112.)

(3. ) Local Discriminations. — The preferences and discriminations which will probably
assume the greatest importance are local discriminations between States — rates made by
the competing railways of different States in order to secure or retain the traffic of
particular localities. It is only between States that competition between railway and
railway exists. Experience suggests that this competition needs regulating ; and at the
same time the power of the Commonwealth in this regard is hedged about with special
restrictions in order that this competition may only be interfered with so far as it is
unfederal in character, and not so far as it is necessary to secure the profitable working
of the railways of a State, or the development of the territory of a State.

But the competition is not only between railway and railway; it is also between
railway and river. Questions are likely to arise as to how far it is justifiable to reduce

§431.] FINANCE AND TRADE. 915

the rates at competitive points as compared with the rates at non-com petitive points ;
how far it is justifiable to reduce the rate for the long-haul as compared with the rate
for the short-haul, and so forth. (See Notes on "Undue and Unreasonable," § 431,
infra.)

§ 431. '' Undue and Unreasonable, or Unjust to Any

State."

The only preferences or discriminations which can be forbidden under this section,
are preferences or discriminations which afe either ( 1 ) undue and unreasonable, or (2)
unjust to any State. The preferences prohibited by the Railway and Canal Traffic Act,
1854, and by the American Inter-state Commerce Act, are preferences which are " uudue
or unreasonable." As no distinction seems ever to have been judicially drawn between
the words " undue " and "unreasonable," but on the contrary they have been declared
to "point to the same sort of mischief" (per Lindley, L.J., Phipps v. London and
N. W.R. Co. [1892] 2 Q.B. at p. '251), it would seem that their use conjunctively instead
of disjunctive!}' makes no material difference.

The words " unjust to any State" may be compared with the words " unjust dis-
crimination " in sec. 2 of the American Inter-state Commerce Act. The American Act,
designed to control persons and corporations, was chieflj- concerned with injustice to
persons ; but this constitutional provision is designed to control the States themselves in
their capacity as carriers, and is therefore concerned with injustice by one State to
another. The insertion of these words, "unjust to any State," perhaps does not
definitely include any preference which was not already included in undue and
unreasonable preferences ; but it indicates that the section expressly contemplates the
prevention of injustice between States, and it also indicates that States, as well as
indiNnduals, will be entitlerl to complain of any breach of federal legislation as to prefer-
ences. It maj' be compared with sec. 13 of the Anierican Inter-State Commerce Act,
which provides that " any person, firm, corporation .... or any body politic or
municipal organization complaining " of anj' violation of the Act may apply to the
Commission.

Question of Fact. — What constitutes undueness, unreasonableness, or injustice to a
State, is a question of fact to be determined broadly on a consideration of the circum-
stances of each case ; and on these questions the decision of the Inter-State Commission
is absolutely final. (See Phipps r. London and N.W.R. Co. [1892] 2 Q.B. 229 ; Palmer
V. London and S.W.R. Co., L.R. 1 C.P. 593 ; Texas and Pac. R. Co. v. Inter-State C.C.,
162 U.S. 145.)

Since the question whether a rate is reasonable or not is a question of fact, to be
determined on consideration of the circumstances of each case, it would seem to be
beyond the power of the Parliament to empower the Commission to prescribe rates.
The power to forbid a preference or discrimination is not the power to make a rate
unlawful, but the power to forbid a difference between two rates. The Parliament under
this section cannot empower the Commission to forbid a rate, but onh' to forbid a
preference or discrimination caused by an inequality of rates. Moreover, to prescribe a
general rate would be practically to decide that the rate is reasonable, and so to
prejudge the cas^ without reference to the circumstances.

" It is arguefl on behalf of the Commission that the power to pass upon the reason-
ableness of existing rates implies a right to prescribe rates. This is not necessarily so.
The reasonableness of a rate, in a given case, depends on the facts, add the function of
the Commission is to consider these facts and give them their proper weight. If the
Commission, instead of withholding judgment in such a matter until an issue shall be
made and the facts found, itself fixes a rate, that rate is prejudged by the Commission to
be reasonable." (Cincinnati, &c., R. Co. v Inter-State C.C., 162 U.S. at pp. 196-7.)

Though what is undue, unreasonable, or unjust, is a question for the Commission
alone, it will be useful to point to some of the principles which seem to be indicated by

916 COMMENTARIES ON THE CONSTITUT[0?^. [Sec. 102.

the Constitution, read in the light of the authorities already cited. The three kinds of
rates to which special reference may be made are (1) prohibitive rates, intended to
prevent the flow of trade in one direction, with a view to inducing it in another ; (2)
competitive rates ; (3) long-haul and short-haul rates.

(1.) Prohibitive Rates. — Any rate made unreasonably high for the purpose of
preventing inter-state traffic in any direction could undoubtedly be forbidden by the
Federal Parliament if any person or State were thereby prejudiced. And it seems clear
that, even without federal legislation, any such rate would be unlawful under sec. 92 as
an interference with freedom of trade, irrespective of any question of discrimination.
If this were not so, any State could practically levy export or import duties upon State
railways.

The common law, though it does not oblige a carrier to charge all customs equallj',
limits him to a reasonable charge. (Baxendale v. Eastern Counties R. Co., 27 L.J. C.P.
137.) It is unnecessary to argue that this rule of the common law becomes applicable as
inter-state law, under the Constitution ; but it seems that some such test is involved in
the requirement of freedom of trade between the States. That is to say, whilst federal
legislation is needed in order to forbid the relative inequality of rates, a rate which is in
itself unreasonably obstructive is forbidden by the Constitution itself. (See Notes to
sec. 92.)

(2.) Competitive Rates. — " A rate may be unreasonable because it is too low, as well
as because it is too high. In the former case it is unreasonably to the stockholder, and
in the latter to the shipper." (Inter-State C.C. v. Cincinnati, &c. , R. Co., 167 U.S. at p.
511.) In this constitution it is undoubtedly contemplated that a rate may be unreason-
able, or unjust, by being, in comparison with other rates on the same railway, too low —
not indeed from the point of view of the stockholder, but of the locality which suSers by
the discrimination. Every discrimination is in fact a matter of comparison between two
or more rates, one of which is relatively too low, and one relatively too high.

As regards competitive rates, the Constitution expressly recognizes, in the provision
that due regard shall be had to the financial responsibilities of the States, the business
principle of competition within reasonable limits, for the purpose of preventing a
financial loss in connection with the construction and maintenance of railways. And the
Constitution also safeguards rates which are made low — even though from the point of
view of another State they may be unreasonably and unjustly low, and even though they
may be competitive in effect — if they are necessary for the development of the territory
of a State (sec. 104).

These provisions seem to indicate that the Constitution contemplates reasonable
competition between State railways, but at the same time recognizes that competition
may become unreasonably and unjustly preferential. This is substantially in accordance
with the English and American decisions already cited. (Phipps v. London andN.W.R.
Co. [1892] 2 Q.B. 229.)

" It seems to me that . . . it is impossible to say that there is anything in
point of law which compels the tribunal to exclude from consideration this question
of competing routes. I do not go further than that. It is unnecessary to go further
than that. I am not for a moment suggesting to what extent it is to weigh. I am not
suggesting that there may not be such an excessive difference in charge made in cases of
competition, as that it would })e unreasonable and unfair when j'ou ace looking at the

Eosition of one trader as compared with the other." (Per Lindley, L.J., Phipps r.
ondon and N.W.R. Co. [1892], 2 Q.B. at p. 245.)

(3.) Long-hanl and Short-haul. — Two questions arise in connection with rates for
short and long hauls ; whether a greater aggregate charge for the short-haul than for the
long-haul is an undue preference ; and M'hether an equal charge for the short-haul and
for the long-haul is an undue preference. Neither the American nor the English Acts
answer these questions absolutely, but they afford indications which may be a valuable
guide.

§§ 431-432] FINANCE AND TRADE. 917

The American Act does not declare a greater aggregate charge for a shorter than
for a longer haul to be an undue preference, but it prohibits it. The prohibition,
however, is not absolute ; the Commission being authorized to exempt any carrier, after
investigation, from the operation of the section (sec. 4). The English Act of 1888
merely empowers the Commission to forbid a greater charge for a shorter than for a
longer haul. (Sec. 27 ; see p. 906, stipra.) Both provisions seem to imply that such a
charge is not necessarily, though it may be usually, an undue preference. (See Hadley,
Railroad Transportation, pp. 114-9.)

With the question of an equal charge for a shorter and for a longer haul, the
American Act only deals negatively. Following the prohibition of a greater charge for
a shorter haul, it declares that " this shall not be construed as authorizing any common
carrier within the terms of this Act to charge and receive as great compensation for a
shorter as for a longer distance." In other words, it leaves the question, whether an
equal charge is permissible, to the operation of the preference and discrimination clauses ;
merely rebutting the inference that might arise, from a greater charge being forbidden,
that an equal charge was permitted. The English Act of 1888, in the provision for
group rates, arrives at a somewhat similar result in a more explicit way. It provides
(sec. 29, see p. 9<)6, supra) that uniform charges may be made to and from a group of
places at reasonable distances from each other ; but subject to the proviso that the rates
must not be such as to create an undue preference. This is a distinct recognition of the
principle that an equal charge for a shorter and a longer haul is not necessaril}' an undue
preference.

The resulting inferences would seem to be : (1) that generally speaking there should
be a greater aggregate charge for a longer than for a shorter haul ; (2) that a system of
" group-rates" may justify an equal charge for a longer and for a shorter haul ; (3) that
Iji exceptional cases a greater charge for a shorter than for a longer haul may be justi-
fiable ; (4) that the question whether a long or short haul rate creates an undue prefer-
ence must be decided accordingly to the circumstances of each case.

It should be noticed, however, that both the English and American provisions are
chiefly for the protection of the short-haul customer who is discriminated against ; in
this Constitution the chief concern is for competing railways and traders who are
prejudiced by the diversion of traffic due to the long-haul rate. In the one case the
complaint is that short-haul rates are unfairly high as compared with long-haul rates ;
in the other, that long-haul rates are unfairly low as compared with short-haul rates.

§ 432. " Due Regard Being Had."

The object of this provision, which was first introduced by Mr. Reid (Con v. Deb.,
Melb., pp. 1510-2) was to safeguard New South Wales against any possibility of such
federal interference with the long-distance rates of that colony as would make it
impossible to work the lines at a profit. In each colony the railways had been
constructed with the provincial object of drawing all trade to the ports of that colony.
New South Wales had sunk a large amount of capital on long-distance lines reaching out
into the competitive areas which are geographically nearer to Melbourne than to
Sydney, or which are within reach of the river route to Victoria and South Australia.
The fear that the powers of the Constitution might possibly be exercised in such a way
as to make some of these railways " waste iron " led to the insertion of this provision.

It is here declared explicitly that one of the things to be taken into consideration,
in deciding whether a prrference or discrimination is undue or unreasonable, or unjust to
any State, is the financial responsibility incurred by a State in connection with the
construction and maintenance of its railways. It does not say that any rate which
helps the railways is reasonable and just, but requires "due regard" to be had to the
financial interests of the States.

Who is to pay this due regard is not stated. The provision was accepted by Sir
George Turner on the distinct understanding that it was to be appended to the words

918 COMMENTARIES ON THE CONSTITUTION. [Sec. 103.

empowering the Parliament to forbid preferences ; lie wished the words to mean " due
consideration by the Parliament," but he did not insist on the insertion of the words
" by the Parliament," as that "might appear to be invidious." (Conv. Deb., Melb.,
p. 1510.) His desire was to prevent the High Court being appealed to on this question.
It would seem- that the words may involve a direction to the Parliament, in legislating
upon the subject, to have due regard to the financial responsibilities of the States ; but
it would be clearly impossible for the High Court to declare a law invalid on the ground
that the Parliament had not had this due regard.

It seems clear that the real importance of the M'ords is in connection with the duty
of the Inter-State Commission to adjudge whether a discrimination is undue or
unreasonable, or unjust to any State. The question of "due regard" is an element in
the decision whether a preference or discrimination is undue, &c., and must be considered
by the tribunal which decides that question. What regard is "due" is obviously a
question of fact on which the decision of the Commission is final ; but if the Commission
declined to take the question into consideration at all, it seems that there would be an
appeal on the giound of an error in law. If the Commission takes into consideration
something which the law excludes it from taking into consideration, or declines to take
into consideration something Avhich the law requires it to take into consideration, that
is clearly a mistake in law. (See Phipps v. London and IN.W.R. Co. [1892] 2 Q.B. 229.)

§ 433. " Unless so Adjudged by the Inter- State
Commission."

The Parliament may forbid preferences or discriminations which are undue and
unreasonable, or unjust to any State ; but it cannot prejudge the question of fact as to
whether any particular preference, under all the circumstances of the case, is of that
character. That is a judicial question, which belongs to the Inter-State Commission
solely and finally. That is to say, the preferences and discriminations which the
Parliament is empowered to forbid by law are those which are undue, &c. ; the application
of the law to the facts of each case is a matter with which the Parliament, as a solely
legislative body, can have no concern.

Commissioners' appointment, tenure, and remuneration.

103. The members of the Inter-State Commission*^ —
(i.) Shall be appointed by the Governor-General in
Council :

(ii.) Shall hold office for seven years*^^, but may be
removed within that time by the Governor-
General in Council, on an address from both
Houses of the Parliament in the same session
praying for such removal on the ground of
proved misbehaviour or incapacity :

(iii.) Shall receive such remuneration as the Parlia-
ment may fix ; but such remuneration shall
not be diuiinished during their continuance
in office.

^434-435.] FINANCE AND TRADE. 919

Historical Note. — The first draft of the Bill at the Adelaide session provided for
the members of the Commission holding office during gooil behaviour, on exactly the
same terms as the federal justices. Some members, however, who were not convinced
that an Inter-State Commission was really necessary, or would have verN' serious duties,
thought that this provision tietl the hands of the Parliament too much ; and the clause
was struck out. (Conv. Deb., Adel., pp. 1114-7.)

Melbourne Session, 1S9S. — The important duties cast upon the Commission in
connection with railway rates led to the question of independent tenure being
reconsidered. On the third recommittal Mr. Barton (in pursuance of a promise made
during the debate on the powers of the Commission) introduced the clause in its present
form. Objections were made on the score of economy, and it was suggested that it
might be found desirable that the Railway Commissioners for the time being should act ;
but the arguments for the independence of the Commission prevailed, and the clause
was passed. (Conv. Deb., Melb., pp. 2457-62 ; and see Hist. Note to sec. 101.)

§ 434. " The Members of the Inter-State Comniission."

Xo provision is made by the Constitution as to the number of the members of the
Inter-State Commission, or as to their qualification. The (Imperial) Interpretation Act,
1SS9 (52 and 53 Vic. c. 63, sec. 1) pro\ndes that in all Acts of the Imperial Parliament,
unless the contrary intention appears, words in the plural shall include the singular.
The words " the members of the Inter-State Commission "' would seem clearly to express
a very definite intention that there must be more Commissioners than one ; a single
Commissioner would not be a " member ' of a Commission ; nor — according to Webster's
definition — could he be a "Commission." A Commission is "a company of persons
joined in the performance of some duty or the execution of some trust ; as, the Inter-
State Commerce Commission." (Webster's Internat. Diet.) The Parliament, in the
exercise of its general powers and its duty of establishing the Commission, will be
able to fix the number of members, and, if thought fit, to prescribe a qualification.

§ 435. " Shall Hold Office for Seven Years."

Except that the appointment need not be for a longer term than seven years, the
tenure of a Commissioner is the same as that of a Justice of the High Court. (See sec.
72, s^ipra.) The provision for removal is indeed framed in an enabling instead of a
prohibitive form, but that is because it is in derogation of the preceding words "shall
hold office for seven years," which exclude all modes of removal except that specified.

The fixity of tenure is for the purpose of securing to the Commission independence
from political influence in the exercise of its important judicial and administrative
functions. On the other hand, the variation from the judicial tenure is a i-ecognition of
the fact that the work of the Commission is administrative as well as judicial, and that
the reasons which make the life tenure of administrative offices undesirable and incon-
venient may be applicable in this case.

The requirement that the members "shall hold office for seven years" does not
prevent the Parliament, if it should think fit, from conferring a longer tenure of office.

920 COMMENTARIES ON THE CONSTITUTION. [Sec. 104.

Saving of certain rates.

104. Nothinoj in this Constitution shall render unlawful
any rate*^** for the carriage of goods upon a railway, the
propertj" of a State, if the rate is deemed by the Inter-State
Commission to be necessary for the development of the terri-
tory of the State^^", and if the rate applies equally''^^ to goods
within the State and to goods passing into the State from
other States.

Historical Note. — At the Melbourne session, 1898, after the adoption of Sir
George Turner's "undue preference" clause (see Hist. Note to sec. 102) the New South
Wales representatives feared that the tapering " long-haul " rates necessary for the
working of their railway system might be interfered with by the Federal Parliament —
which was the tribunal provided for at that stage. It was argued that Sir George
Turner's clause, as it stood, affected the internal traffic of a State as well as inter-state
traffic. Accordingly Mr. O'Connor proposed (Debates, p. 1410) to insert a provision
that nothing in the Constitution should be taken to render a rate on any State railway
unlawful " on the ground that it is unduly low." The intention was to allow unlimited
competition, so far as "cutting rates "was concerned, subject only to the prohibition
against preferential treatment. Sir George Turner complained that this neutralized his.
clause, because nine times out of ten the injustice would be that a rate was unduly low.
He wished to prevent unfair competition. The position became critical, and Mr.
O'Connor, to relieve the strain, modified his proposal to read that a rate on a State
railway should not be prohibited on the ground that it was unduly low " if such rate is
imposed for the development of traffic between places within the limits of the State."
He insisted strongly that the clause as it stood meant that the internal trade of New
South Wales was to be " fixed to suit somebody else." Sir George Turner still objected
to the amendment ; low rates would be wanted, not for development, nor for the benefit
of producers, but for the conserving of " traffic." At last (p. 1448) Mr. Grant appeared
as mediator. He admitted that Sir George Turner's amendment was meant fairh', but
thought it might hinder development ; and he moved an amendment providing that
notwithstanding anything in the Constitution, " such laws {i.e., federal trade and com-
merce laws] shall not have the effect of preventing the development of the internal
resources of any State." This, after discussion, he modified to provide that "Notliing
in this Constitution shall prevent the imposition of such railway rates by any State as
may be necessary for the development of its territory, if such rates applj' equally to
goods from other States." Sir George Turner and Mr. Isaacs were willing to accept
this if it were worded as an instruction to the Federal Parliament, instead of being left
to the High Court. They did not wish to prevent rates which were honestly develop-
mental, but insisted that this was a political question, and tliat Parliament was the
proper tribunal. The question now was practically which of the three tribunals should
be adopted : the High Court, the Parliament, or — as a compromise between the two —
the Inter-State Commission. At last the amendments were withdrawn, and Mr. Grant
(p. 1506) moved his proposal in the form of a new clause. Sir George Turner moved to
insert " in the opinion of the Parliament." Mr. Holder, however, proposed to substi-
tute "Inter-State Commission" for "Parliament," and this was agreed to on the
voices. The clause in this form was carried by 22 votes to 21. (Conv. Deb., Melb.,
pp 1410-1510.)

On the second recommittal a redraft of the clause was carried. (Conv. Deb., Melb.,
pp. 2392-3. ) After the fourth report further drafting amendments were made.

§§436-437.] FINANCE AND TRADE. 921

§ 436. " Shall Render Unlawful Any Rate."

Strictly speaking, it would seem that there is nothing in the Constitution— except
the provision of sec. 92 that inter-state trade shall be " absolutely free " — to render a
rate, considered bj' itself, unlawful. Sec. 102 renders unlawful any preference or
discrimination which is forbidden by the Parliament and which is adjudged by the
Commission to be undue and unreasonable, or unjust to any State ; but what may be
forbidden by that section is not a rate, but a difference between rates. On this ground
it has been held under the English preference clauses that there is no right of action for
an overcharge, because the court cannot decide what the rate ought to be, but only that
there is an undue difference between two rates. (Denaby Main Colliery Co. v. Man-
chester, &c., R. Co., 11 App. Ca. 97 ; Rhymney R. Co. v. Rhymney Iron Co., 25
Q.B.D. 146.) " Where there is a breach of the equality clause, no doubt you may sue
to recover the difference on the basis that you can compel the railway company to pay
you back anything which you have paid over what, for precisely the same service, they
have charged to another. But under the Railway and Canal Traffic Act, as was pointed
out in the House of Lords, the companj' have their option. Thej- may put up one charge,
they may put down the other." (Per Lord Herschell, Phipps v. London and N.W.R.
Co., 1892, 2 Q.B. at p. 248.)

When therefore a rate is complained of, and it is adjudged that in connection with
another rate it constitutes an undue preference, the rate complained of is adjudged
to be, not absolutely, but relatively, unlawful ; to be unlawful on the assumption that
the preference is not removed by the alteration of other rates. That is clearly the sense
in which the prohibition containetl in this section is intended. The debates, and the
words of the section itself, show that this provision is meant as a qualification of the
power to prevent preferences by a State, so far as they may be "necessary for the
development of the territory of the State."

§ 437. " Necessary for the Development of the Territory

of the State."

Mr. O'Connor's first suggestion, that a rate should not be unlawful if imposed " for
the development of traffic between places within the limits of a State" (see Historical
Note) was objected to bj' Sir George Turner as referring not to the development of the
countr}', but to conserving the traffic in the competitive area. Accordingly Mr. Grant's
amendment, from which the section is adapted, spoke of the development of territory.

The section is a recognition of the fact that the railways, being owned by the State,
are in a different position to private companies. They are public institutions as well as
business concerns, and may be worked, not merely for the purpose of making a profit on
the railway business, but for the purpose of developing the resources of the State by
which they are owned. Rates which, in the case of a company, would be preferential,
might conceivably, from the point of view of a State, be necessary for the development
of its territory ; and the object of this section is to protect rates imposed with that
object, whilst leaving unprotected any rate the purpose of which is to interfere with the
equality of inter-state trade.

That public interests should be considered is the basis of all railroad legislation. It
has been laid down in numerous American cases that railways are public highways, and
subject to government control (see Smyth r. Ames, 169 U.S. 466; Cherokee Nation v.
Kansas R. Co., 135 U.S. 641). What this section recognizes is a particular exemption
from control by the Federal Government, so far as is necessary for development of the
resources of the States.

A curious analog}' to this provision may be foimd in the (Imperial) Railway- and
Canal Traffic Act, 1888, sec. 27, sub-sec. ii., which empowers the court or the Com-
missioners, in deciding whether a lower charge or difference of treatment is an undue

922 COMMENTARIES ON THE CONSTITUTION. [See. 105.

preference, to take into consideration whether the lower charge or diflference is
•' necessary for the purpose of securing in the interests of the public the traffic in
respect of which it is made." (See p. 906 nupra.)

The question, whether a rate is necessary for the development of the territory of a
State, is one of fact, to be decided in each case as it arises by the constitutional
tribunal. The test of the legality of such a rate is its necessity. Not every rate which
does as a fact develop or tend to develop a territory will be valid. It must have some-
thing more than a mere developing effect to place it beyond attack. It must not be
merely "for the development," but "necessary for the development;" and the
Commission, not the State authority, is the sole judge of that necessity. Consequently
a State could not under the name and guise of a development rate make a charge for the
carriage of goods on a railway which is not fairly and reasonably essential for develop-
mental purposes, but which is in reality intended to act as a preference or to draw trade
and traffic from its natural flow and destination.

The "territory" contemplated by this section is no doubt that region of the State
within the sphere of influence of the railway on which the rate is operative. The
development of localities beyond that sphere could not be taken into consideration,

§ 438. " If the Rate Applies Equally."

The section of the Railway and Canal Traffic Act, 1888, just mentioned, contains
the following proviso, which makes the analogy even more marked :—" Provided that
no railway company shall make, nor shall the court or the Commissioners sanction, any
<liff'erence in the tolls, rates, and charges made for, or any difference in the treatment of,
home and foreign merchandise, in respect of the same or similar services." Just as, in New
South Wales, complaint has been made of the "special rates" by which the Riverina
trade is drawn to Melbourne, so in England complaints were made of " special import
rates " for foreign merchandise. The diS'erence was that in England the complaint was
made by the rival home producers, who objected to the encouragement of the impoi'ted
article ; here it is a complaint, by the merchants of one State, against unfair competi-
tion bj' another State for the export trade.

Under the English section, it has been held that the effect of the proviso is not to
prohibit all inequalities in rates as between home and foreign merchandise, but that, if
the railway company has proved facts which would justify the admitted differences, had
the goods in both cases been home goods, the companj' is not debarred from relying on
these facts as an answer, merely because the goods which receive the benefit of the
difference of are foreign origin. (Mansion House Association ik London and S.W.R. Co.
[1895], 1 Q.B. 927.)

The effect of the provision is that, if a rate infringes the provision of equality as
between States, it loses the protection of this section, and becomes subject to the
operation of federal laws as to preference and discrimination.

Taking over public debts of States.

105. The Parliament may take over*=^^ from the States
then- public debts as existing at the establishment of the
Commonwealth''*", or a proportion thereof according to the
respective numbers of their people as shown by the latest
statistics of the Commonwealth, and may convert, renew, or
consolidate such debts**\ or any part thereof; and the States
shall indemnify the Commonwealth"^ in respect of the debts
taken over, and thereafter the interest payable in respect of

FINANCE AND TRADE. 923

the debts shall be deducted and retained from the portions of
the surplus revenue of the Commonwealth payable to the
several States, or if such surplus is insufficient, or if there is
no surplus, then the deficiency or the whole amount shall be
paid by the several States**^

UxiTED States. —All debts contracted and engagements entered into, before the adoption of
this Constitution, shall be as valid against the United States under this Constitution as
under the Confederation — Const-, Art. VI , sec. 1. (This refers to the war debt of the
Confederation— not to the debts of the States.)

Cax ADA. — Canada shall be liable for the debts and liabilities of each Province existing at the
Union.— B N.A Act, 1867, sec. HI. (The Provinces were made liable to Canada for the
amounts by which their indebtedness exceeded certain specified amounts.— Sees. 112-116.)

Historical Note.— The original clause in the Bill of 1891 was as follows : —

" The Parliament of the Commonwealth may, icith the consent of the Parliaments of
all the States, make laws for taking over and consolidating the whole or any part of the
public debt of any State of States, but so that a State shall be liable to indemnify the
Commonwealth in respect of the amount of a debt taken over, and that the amount of
interest payable in respect of a debt shall be deducted and retained from time to time
from the share of the surplus revenue of the Commonwealth which wotdd otherwise be
payable to the State."

In the Sydney Convention of 1891, Sir John Bray moved an amendment, somewhat
on Canadian lines, to make the Commonwealth liable at once for the debts of each
State existing at the time of union, and to make the States liable to the Commonwealth
for any excess of such debts over a fixed amount per head of the population. Most of
the members favoured ultimate consolidation, but this was thought to go too far. The
points in its favour were that it would get rid of the dangerous surplus, and result in a
large saving of interest ; the chief point made against it was that it involved the ti-ansfer
of a liability without corresponding assets. The last argument was answered by pointing
out that the revenue powers of the Commonwealth were the equivalent asset ; but the
real objection, from the point of \-iew of New South Wales, was that the proposal might
dictate a high revenue tariff. The amendment was negatived. A protest was made
against requiring the consent of " all the States," but the clause was passed without
alteration. (Conv. Deb., Syd., 1891, pp. 835-49.)

Adelaide Session, 1S97. — The clause as introducetl at Adelaide provided that the
Parliament might, with the consent of the Parliament of any State, take over the whole
or any part of the debt of that State. The rest of the clause was as before, with an
addendum that " upon any conversion or renewal of the loan representing the debt, any
benefit or advantage in interest or otherwise arising therefrom shall be applied to the
reduction of the debt." There was much diversity of opinion upon the whole subject.
Mr. Reid had nothing to say, so long as no compulsory proposition was made. Sir
George Turner would have liked a compulsory taking over of all tlie debts, but in view
of Mr. Reid's strong objection he did not press this. Still, he thought that the power
should be to take all the debts of all the States, and he objected to the consent of the
States being required. Mr. Holder and Mr. McMillan pointed out that compulsory
consolidation meant making a present of the federal security to the bondholders ; but
they approved of giving the Parliament power to act without the consent of the States.
Some thought that the power should be limited to existing debts ; others that it ought
to extend to future debts ; some thought that future State borrowing should be restricted;
others that this was impossible.

Eventuall}^ on Sir George Turner's motion, the requirement of the consent of the
State Parliaments was omitted, on division, by 20 to 15, and the power was limited to
"the whole, or a rateable proportion of the public debts of the States as existing at the
establishment of the Commonwealth." The provision requiring anj' savings made to be
spent in reduction of interest was negatived, and Mr. Uiggins added a declaration that

924 COMMENTARIES ON THE CONSTITUTION. [See. 105,

the "rateable proportion" should be calculated on a population basis. (Con v. Deb.,
Adel., pp. 1085-1103.)

Melbourne Session, 1898. — At Melbourne, Mr. Glynn moved an amendment provid-
ing for compulsory consolidation of debts, each State indemnifying the Commonwealth
for any excess of its debts over the average indebtedness. This, after a long debate,
was negatived.

Mr. Holder (for Mr. McMillan) then moved (Debates, p. 1577) to insert, after
"Parliament," the words "may take over the whole or any part of the debt of the
State, subject to the consent of the State." On this Sir Geo. Turner moved the substi-
cution of "shall" for "may," which was carried by 25 votes to 8; a division which,
coming as it did after the rejection of the guarantees, signified a desire on the part of
the Convention to make some definite provision with regard to the threefold problem of
the debts, the railways and the guarantees, Mr. Holder lamented this " unfortunate
vote " on the ground that it would at least put our worst securities on a level with our
best, and would make a present of millions to the bondholders ; Avhilst M r. Reid (who .
had been absent when the vote was taken) objected on the ground that it dictated a^
high tariff. The Convention, after some debate, showed a disposition to reverse the
effect of its vote. The amendment was consequentially amended by the omission of all
words after " shall take over ;" but the proposal to insert those words in the clause wa»
negatived, on di\ision, by 19 to 18, and the clause was agreed to without any amend-
ment. (Conv. Deb., Melb., pp. 1540-1653.) Drafting amendments were made before
the 1st Report, and after the 4th Report.

§ 439. "The Parliament May Take Over."

The power given to the Parliament by this section is absolute, and may be exercised
without the consent of the States. The power can of course only be exercised under an
Act passed by the Parliament for that purpose. Such an Act will presumably not be
passed so as to effect the transfer itself, or even so as to direct absolutely that the
transfer shall be made ; as either of these courses would be open to the objection raised
by Mr. Holder to a peremptory provision in the Constitution — namely, that it would
make a present of the federal security to the bondholders, and so prevent any possibility
of an advantageous conversion before maturity. It will probably be in an enabling
form, authorizing the Federal Treasurer to negotiate with the bondholders, and so offer
them the federal security in exchange for some concession which will share the benefits
of the transfer between the Commonwealth and the bondholders.

The effect of the transfer will be to substitute the credit of the Commonwealth for
the credit of the States — to make the Commonwealth the debtor to whom the bond-
holders will have to look, and to release the States from any obligation to the
bondholders, imposing on them instead an obligation to indemnify the Commonwealth
for the amount of principal and interest.

§ 440. "Their Public Debts as Existing at the Establish-
ment of the Commonwealth."

The Parliament, when it takes action under this section, will have two alternatives
open to it ; either to take over the whole of the debts of all the States, as existing at the
time of the establishment of the Commonwealth, or to take over from each State a
certain definite sum per head of its population. If it chooses to adopt the latter course,
it may fix the per capita indebtedness to be taken over at any amount up to, but not
exceeding, the per capita indebtedness of the State whose per capita indebtedness
is lowest. In other words, all the possible alternatives may be expressed thus : —
If the public debt of each State is divided by the number of its people, we get the per
^capita indebtedness of each. The result, taking the figures for 19(X)(Coghlan's Statistics
of th? Seven Colonies, 19U0, p. 25) is as follows : —

4§4-«'-442.]

FINANCE AND TRADE.

925

Colony.

Public Debt.

Indebtedness
per capita.

New South Wales

Victoria

Queensland

South Australia
Western Australia ...
Tasmania

Total

65,332,993
49,324,885
34,349,414
26,156,180
11,804,178
8,413,694

£ s. d.
48 0 0
42 4 6
70 7 9
70 16 5
66 4 11
46 3 1

£195,381,344

£52 2 10

The minimum indebtedness per head of population is that of Victoria. £42 4s. M.
Adopting the " proportional " alternative, the Commonwealth may take over from each
State any amount per head that maj' be decided upon, up to £42 4s. 6d. Beyond that
sum the proportional plan cannot go, because no greater amount can be taken over from
Victoria ; and if it is desired to take over a larger amount, the only way is to take over
the whole of all the debts.

It should be observed that in calculating the indebtedness per head, though the
amount of the debts is taken as at the establishment of the Commonwealth, the popula-
tion is taken from "the latest statistics of the Commonwealth" at the time when the
ti-ansfer is proposed. The powers given to the Commonwealth, if the whole debts are
not taken over at first, may be exercised from time to time ; that is to say, if a propor-
tion less than the maximum has been taken over at one time, a further pi-oportiou may
be taken over at another ; or the whole balance may be taken over.

This section gives no power except with regard to debts " as existing at the estab-
lishing of the Commonwealth." After the establishment of the Commonwealth there is
nothing to prevent the States continuing to bori-ow on their own credit ; but there is no
provision in the Constitution to allow the Commonwealth to assume liability in respect
of such subsequently incurred debts.

The question arises whether, in the event of an}* debt of a State falling due and
being renewed before the debts are taken over, such renewed debt can be taken over by
the Commonwealth under this section. It is submitted that it can ; and that the effect
of the words "as existing at the establishment of the Commonwealth" is to fix the
amount of the debts which can be taken over, and not to identify the particular
contracts of debt existing at that time.

§ 441. " And may Convert, Renew, or Consolidate such
Debts, or any Part thereof."

These words were inserted on Sir George Turner's motion at the Adelaide
Convention (Debates, p. 1097 ; Proceedings, p. 99) ; but they hardly seem to be
necessary. The powers of convei-sion, renewal, and consolidation would seem to be
necessarily incidental to the power to take over the debts — or at least to be included in
the power to borrow money on the public credit of the Commonwealth (sec. 51 — iv).

^ 442. " The States shall Indemnify the Commonwealth."

The indemnity here given seems, by the subsequent words, to be limited to the
principal and interest payable by the Commonwealth, and not to include charges other
than interest, or the expenses of administration, which are apparently to be treated as
expenditure of the Commonwealth, and charged against the States (so long as sec. 89 or
sec. 93 is in operation) in proportion to population. •

926 COMMENTARIES ON THE CONSTITUTION. [Sec. 106.

§ 443. "Shall be Paid by the Several States."

It would seem that the indemnity, coupled with the direction that the amount shall
be paid, is sufficient to create a debt owing by the State to the Commonwealth. The
Constitution contains no provision for the recovery of this debt, and the States, apart
from legislation, are not suable except by their own consent (§ 338, siipra) ; but it is
submitted that a suit by the Commonwealth for paj'ment, being a matter " in which the
Commonwealth is a party," is within the judicial power, and therefore that the Federal
Parliament may, under sec. 78, make laws conferring rights to proceed against the
States in such matters.

§ 444.] THE STATES. 927

CHAPTER v.— THE STATES^^\
§ 444. " The States."

The States are parts of the Commonwealth ; this is one of the basic principles in
the structure and organization of the federated community. In order to present a true
conception of the position of the States in the Commonwealth some of the gi-ound
pre\iously travei-sed must be here re\-iewed, and attention drawn to the fundamental
conceptions and relations expressed by the words "Empire," "Commonwealth,"
"States," " Constitution," and "Government."

In accordance with the agreement of the people of the Australian Colonies to unite
in one Federal Commonwealth under the Crown, the British Parliament, in which resides
the supreme and absolute sovereignty of the Empire, has established the Commonwealth
and ratified and legalized the Constitution previously approved by the people. The
Commonwealth is the united political society thus established ; it consists of the people
and of the pre-existing colonies, converted into States. Attention is particularly drawn
to this definition of Commonwealth, which is clear and unchallengeable, according to the
express wording of the Preamble and the first six clauses of the Imperial Act. In
certain sections of the Constitution, however, the word Commonwealth is used to denote
the central Government established by the Constitution, and not the political s<5ciety
itself which is organized under the Constitution, and governed by Federal and State
governments alike. In the American Constitution it has been noticed that a similar
confusion of meaning exists. In the Preamble and other sections, the term " United
States " means the united political society composed of the people of the States.
Occasionally, however, as in Art. IV. Sec. 4, and the Tenth Amendment, the term
" United States " is used to signify the Federal Government. (Luther r. Borden, 7 How.
1 ; Pomeroy's Const. Law, 10th ed. p. 68. Note, § 466, infra.) These are illustrations
of the manner in which a political community capable of exercising sovereign or quan-
sovereign powers may be confused with its governing organs. Care must, therefore, be
taken to note and understand the meaning of the word Commonwealth, as conveyed by
its context ; by so doing misapprehension and confusion of thought will be avoided.

The primary and fundamental meaning of "The Commonwealth" is the united
political community composed of the people and the antecedent colonies, now converted
into States. That political community has been established by the Imperial Parliament,
and endowed with the powers of self-government, by virtue of which the community
maj' )je described, for the purpose of this analysis, as possessing a kind of political
sovereignty ; not absolute and independent sovereignty, for that belongs to the British
Parliament, but a derivative, delegated, or giKwi-sovereignt}'. This ^wcwt-sovereignty
is conveyed to the new society b}' the Imperial Act, and through the Constitution in
that Act. The Constitution partitions or distributes the powers pertaining to this qtiasi-
sovereignty in the following manner : One bundle or set of the totality of gita-*i'-sovereign
powers is expressly and definitely assigned to certain governing organs called the Federal
Parliament, the Federal Executive, and the Federal Judiciary, accompanied bj' limita-
tions and prohibitions, determining the methods or principles according to which those
powers are to be used. The balance of the quasi-so\ere\ga powers are reserved to
certain autonomous and governing groups, formerly called colonies, now called States ;
those powers being such as are defined in the Constitutions of the States, granted to them
by the Imperial Parliament before the union. By the Federal Constitution the State
Constitutions were confirmed and continued in existence, subject to the grants of power
made by the Constitution to the Federal organs of government. In addition to these

928 COMMENTARIES ON THE CONSTITQTION. [Sec. 106.

assignments of power among the two sets of governing agencies, the Constitution contains
a section enabling the people of the united community, in the exercise of their quasi-
sovereign power, to amend the supreme instrument of government itself. This power of
amendment enables the people, if necessary, to redistribute the powers granted and
apportioned by the Constitution, either by taking from the State Governments and
giving to the Federal Government, or by taking from the Federal Government and
giving to the State Governments. The subjoined conspectus may be used to illustrate
the relation of the State Governments to the Federal Government, and the joint relation
of both to the amending power, to the Constitution, and to the Commonwealth : —

Commonwealth — (^ita,st-Sovereignty

Federal Constitution

Federal Government State Governments Mode of

I I Amendment

Federal Federal Federal State State State

Parliament Executive Judiciary Parliaments Executives Judiciaries

From these observations it appears that the Imperial Parliament has vested, in the
united and indivisible people of the Commonwealth, some of the highest attributes of
sovereignty, limited only by its own paramount supremacy ; that in the Constitution
there is a division of that delegated sovereignty into two spheres or areas, one being
assigned to the Fedeial Government, and the other to the State Governments ; that each
Government is separate and distinct from the rest ; that the Federal Government cannot
encroach on the sphere or area of the State Governments, and that the State Governments
cannot encroach on the sphere or area of the Federal Government ; that the sphere or
area of the Federal jurisdiction can only be modified, enlarged or diminished by an
alteration of the Constitution ; that the sphere or area of the State jurisdictions can
only be modified, enlarged, and diminished by a similar alteration. This dual system of
government is said to be one of the essential features of a Federation.

It may be added that the governing powers reserved to the States are not inferior ih
origin to the governing powers vested in the Federal Government. The States do not
derive their governing powers and institutions from the Federal Government, in the way
that municipalities derive their powers from the Parliament of their country. The
State Governments were not established by the Federal Government, nor are they in
any way dependent upon the Federal Government, except by the special provisions of
sec. 119. The States existed as colonies prior to the passing of the Federal Constitution,
and possessed their own charters of government, in the shape of the Constitutions
granted to them by the Imperial Parliament. Those charters have been confirmed and
continued by the Federal Constitution, not created thereby. Hence, though the powers
reserved to the States are not wide, general, and national, no badge of inferiority or
subordination can be associated with those powers, or with the State institutions through
which they are exercised. State powers and State institutions. Federal powers and
Federal institutions, all spring directly from the same supreme source— British
sovereignty. The Federal Government and the State Governments are in fact merely
different grantees and trustees of power, acting for and on behalf of the people of the
Commonwealth. Each of them has to exercise its powers within the limits and in the
manner prescribed by the Constitution ; each of them has difl'erent powers to be used in
different domains for different purposes. The Constitution is the title, the master, and
the guardian of all these various governing agencies. At the back of the Federal and
State Governments are the guowi-sovereign people of the Commonwealth, organize<l

§§444-445.] THE STATES. 929

\»-ithin the Constitution as a ^wcwi-national State ; they can alter the instrument of
government, abolishing existing institutions of government, and substituting new ones,
subject onlj- to its special provisions and the Imperial supremacy. The States, therefore,
as governing organizations, are not inferior in origin or status to the Federal governing
i organizations. Both are equally subject to the law of the Constitution, and equally
t entitled to its protection. " The perpetuity and indissolubility of the Union by no
means imply the loss of distinct and indi^-idual existence, or of the right of self-government
by the States. Not only, therefore, can there be no loss of separate and independent
autonomy to the States, through their union under the Constitution, but it may not be
unreasonably said that the preservation of the States and the maintenance of their
governments are as much within the design and care of the Constitution as the pre-
servation of the Union and the maintenance of the national government. The
Constitution in all its provisions looks to an indestructible Union composed of indes-
tructible States." (Per Chief Justice Chase in Texas r. White, 1868, 7 Wall. 724-5.)
" In these opinions the Supreme Court, for the first time in its entire history, struck the
solid ground of historic fact, and announced a theorj' which defines and preserves both
the inherent nationality of the United States, and the separate existence, necessity, and
local rights of the sev^eral States." (The Nation, 29th June, 1871.)

Saving of Constitutions.

106. The Constitution of each State^^ of the Common-
wealth shall, subject to this Constitution***, continue as at the
establishment of the Commonwealth, or as at the admission
or establishment of the State, as the case may be, until
altered in accordance with the Constitution of the State.

Historical Xote. — Clause 6, Chap. V. of the Commonwealth Bill of 1891 was to
the same effect. In Committee, in the Convention of 1891, Mr. Gordon mov€tl to add :
— " But it shall not be necessary to reserve any proposed alteration of the Constitution
of any State for the Queen's pleasure to be made known." This was negatived by 27
votes to II. Sir Geo. Grey moved to add : — " But it shall not be necessary to reserve
for the Queen's pleasure any law made by a State." This was negatived by 30 votes to
9. (Conv. Deb., Syd. [1891] pp. 864-5.) At the Adelaide session, 1897, the clause
was frauicd in almost exactly the same words. In Committee, Mr. Gordon moved to
omit the words " in accordance with " &c. This was negatived. (Conv. Deb., Adel ,
pp. 991-2.) At the Melbourne session, a redraft was agreed to. (Conv. Deb., Melb.,
pp. 664-5. ) A drafting amendment was made after the fourth report.

§ 445. '*The Constitution of each State."

In the preparation of the new Constitution the design kept in view was to distribute
the delegated sovereignty of the Commonwealth among two groups of governing organs.
That delegated sovereignty consisted partly of old powers and partly of new powers.
The old powers were those previously granted by the Imperial Parliament to the
separate colonies. The new powers were those freshly granted by the Ipiperial Parlia-
ment. The whole of those powers, new and old, constituted the lywo-^i-sovereignty of
the Commonwealth. In the process of distribution nearly all the new powers and a
proportion of the old powers were vested in the Federal Government, the guiding
principle being that those powers, and those powers only, which could be best exercised
by a Parliament representing the united people, should be transferred from the States to
the Federal Government. This distribution left the States in the full possession and
«njoyment of their original institutions and their previously acquired powers, minus
59

930 COMMENTARIES ON THE CONSTITUTION. [Sec. 106.

only this deduction and transfer. Thus the States retain their Constitutions, their
Parliaments, their Executive and Judicial organizations, subject only to the loss of
those powers which by the Federal Constitution are withdrawn from the scope and oper-
ation of the State Constitutions and brought within the sphere of the Federal Consti-
tution.

These principles of delimitation and partition were plainly' outlined in the prelimi-
nary resolutions moved by Sir Henry Parkes, and adopted bj' the Federal Convention
of 1891.

" I, therefore, lay down certain conditions which seem to me imperative as aground-
work of anything we have to do, and I prefer stating that these first four resolu-
tions simply lay down what appear to me the four most important conditions on
which we must proceed. First : ' That the poAvers and privileges and territorial rights
of the several existing colonies shall remain intact, except in respect 'to such surrenders
as may be agreed upon as necessary and incidental to the power and authority of the
National Federal Government.' I think it is in the highest degree desirable that we
should satisfy the mind of each of the colonies that we have no intention to cripple their
powers, to invade their rights, to diminish their authority, except so far as it is absolutely
necessary in view of the great end to be accomplished, which, in point of fact, will not
be material as diminishing the powers and privileges and rights of the existing colonies.
It is therefore proposed bj' this first condition of mine to satisfy them that neither
their territorial rights nor their powers of legislation for the well-being of their own
country will be interfered with in any way that can impair the security of those rights,
and the efficiency of their legislative powers." (Sir Henry Parkes. Conv. l)eb., Sj'd.,
1891, p. 24.)

In the Adelaide Convention of 1897, a similar resolution was made the basis of the
Constitution which was then drawn. It was resolved that the several colonies were not
to be touched in any of their powers, privileges, and territories, except where a surrender
was necessary to secure uniformitj' of law and administration in matters of general
concern ; that, after the establishment of Federation, the inviolability of the territory
of each colony should be still preserved, subject to the determination of the people of such
colony themselves. (Conv. Deb., Adel. , p. 20.)

B}' the force of the legislative mandate that " the Constitution of each State of the
Commonwealth shall, subject to this Constitution, continue as at the establishment of
the Commonwealth " it may be argued that the Constitutions of the States are incor-
porated into the new Constitution, and should be read as if they formed parts or
cliapters of the new Constitution. The whole of the details of State Government and
Federal Government may be considered as constituting one grand scheme provided by
and elaborated in the Federal Constitution ; a scheme in which the new national
elements are blended harmoniously with the old provincial elements, thus producing a
national plan of government having a Federal structure.

In the pardoning power case of the Attorney-General of Canada v. Attorney-General
of Ontario (1892), 19 Ont. Rep. 31, it was argued that the use of the phrase "consti-
tution," in referring to the federal and provincial instruments of government, indicated
the existence in the case of the Provinces of the same quality of legislative power, to be
exercised in the same way, and with the .same degree of latitude, as to methods, means,
and facilities for carrying out such legislative power, as in the case of the Dominion.
The same word was used to denote the British Constitution, the Constitution of the
Dominion, and the Constitutions of the Provinces. In its application to the Provinces it
was contended that it could not be ixsed in the sense of an Act for the incorporation of a
company, or in the sense of a charter of a municipalitj' ; the title showed that it
referred to the Constitution of a State, embracing the idea of sovereignty and political
organization. (Wheeler, C C, p. 27.)

It was accordingly held in that case that the legislature of a Province could vest in
the Xiieutenant-Govemor thereof the power to commute and remit sentences for offences
against the law of the Province, or offences over which the legislative authority of the
Province extends, as fully and effectuall}' as the Dominion Parliament coidd vest a
similar authority in the Governor-General in relation to offences against the law of the
Dominion. (Lefroy, Leg. Power, p. 39.)

§§445-446.] THE STATES. 931

The Federal Government and the State Governments are, within their respective
spheres and areas, subject equally to the Constitution, and, in the last resort, to the
Imperial Parliament. In the case of Maritime Bank of Canada r. New Brunswick
Receiver-General (1892), App. Cas. 437, the question raised was whether the Provincial
Government were entitled to payment in full over the other depositors and simple
contract creditors of the bank. When the bank stopped payment, the Provincial
Government was a simple conti-act creditor for §35,030, being public money of the
Province deposited in the name of the Receiver-GeneraL The Receiver-General claimed
pajTnent in full as representing Her Majesty. The Judicial Committee (per Lord
Watson) held that the effect of the Dominion Act was not to sever all connection
between the Crown and the Pro\"inces. The Act of 1867 nowhere professes " to curtail
in any respect the rights and pri\ileges of the Crown, or to disturb the relations then
subsisting between the Sovereign and the Provinces. The object of the Act was neither
to ^v1eld the Provinces into one, nor to subordinate provincial governments to a central
authority, but to create a Federal Government in which they should all be represented,
entrusted with the exclusive administration of affairs in which they had a common
interest, each Province retaining its independence and autonomy" (1892, App. Cas. 441).
"The prerogative of the Queen, when it has not been expressly limited by local law or
statute, is as extensive in Her Majestj's Colonial possessions as in Great Britain. And
the Crown, as a simple contract creditor for public moneys of the Province deposited
with the bank, was entitled to priority over other creditors of equal degree." (Wheeler,
C.C.p. 31.)

§ 446. " Subject to this Constitution."

The Federal Constitution withdraws powers and functions, but it does not abolish or
interfere with any of the political institutions established in the States under their
respective Constitutions. The States retain their executive, legislative, and judicial
department* as before, but shorn of some of their powers and functions. The Governor
and Executive of a State will not be required to discharge all the duties which belonged
to the Grovernor and Executive of a separate colony. The Parliament of a State will not
have the same quantity of work to get through as the Parliament of a separate colony.
The Courts of the States, however, will not, to anj' appreciable extent, Jose any of their
old duties, w hilst new Federal work may be imposed upon them.

Unimpaired ExEcrxivE Power. — The Executive Government of each State retains
the right to hold direct and immediate communication with the Imperial Government in
all matters relating to State business. In the Draft Bill of 1891, ch. V. clause 5, it was
provided that "all references or communications required by the Constitution of any
State or otherwise to be made by the Governor of the State to the Queen shall be made
through the Governor-General, as Her Majesty's Representative in the Commonwealth,
and the Queen's pleasure shall be made known through him." In support of this section
strong arguments were advanced by members of the Convention of 1891, of known
sympathy with State rights :

"I have always maintained that one of the principal reasons for establishing a
federation in Australia was because the Governments were always pulling in different
directions. Australia speaks with seven voices instead of with one voice. Now, the
hon. gentleman wishes that Australia should continue to speak with seven voices instead
of with one voice (Mr. Gillies : Only on matters appertaining to themselves I Dr.
Cockburn : On matters appertaining to themselves they should not want to communicate
with the Imperial (Jovernment at all I) I maintain that ministers in Australia are
to be the Queens ministers for the Commonwealth, and any communication affecting any
part of the Commonwealth which has to be made to or by the Queen, should be made
with their knowledge. Without that Me shall not have the voice of one Commonwealth
in Australia. I maintain that this argument is quite indisputable. The hon. member's
argument amounts to this : somebody will not like it ; some people object to it, and it
is not absolutely necessary. I admit that it is not absolutely necessary ; but I say it is
necessary if we are going to establish a real Commonwealth in Australia. I think the
idea is that there is to be but one Government for Australia, and that we shall have

932 COMMENTARIES ON THE CONSTITUTION. [Sec. 108.

nothing more to do with the Imperial Government except the link of the Crown. We
recognize the Crown, but do not desire to have the Governments of Australia all trying
to attract the attention of the Secretary of State in Downing-street. (Mr. Gillies : We
cannot prevent them from having agents-general !) Certainly not ; but the agents-
general will be limited to their functions as commercial agents. (Mr. Gillies : Will
they ?) They will no longer be diplomatic agents. I maintain that Australia is to have
only one diplomatic existence, and, therefore, only one diplomatic mouth-piece in any
other part of the world." (Sir Samuel Griffith, Conv. Deb., 1891, p. 850.)

" I do not think there is in this Convention a stronger advocate of State rights and
State interests than I am ; but, still, I stronglj' support the clause as it stands, for it
seems to me that one of the very fundamental ideas of a federation is that, so far as all
outside nations are concerned, we shall be Australia to the outside world, in which
expression I include Great Britain ; that we shall speak, if not with one voice, at all
events, through one channel of communication to the Imperial Government." (Mr. R.
C. Baker, id. p. 852. )

" It really does one good to hear so sound a sentiment .from my hon. friend, Mr.
Baker, to which I entirely respond. I cannot understand for the very life of me, how
we can aspire to be one Australian people under the Crown, and have several channels
of comnmnication with the Crown. We must either be a nation or we must be a chain
of unfederated States." (Sir Henry Parkes, id. 853.)

The clause was carried by 16 votes to 6. The draft of the Constitution, as submitted
by the Constitutional Committee to the Federal Convention at Adelaide, contained no
such clause. In the Convention Mr. Deakin proposed to insert a clause similar to that
of the old Bill. Such a provision, he argued, was absolutely essential to secure a proper
national administration of Australasian affairs. There should be only one channel of
communication with the Imperial Government. If there were separate and independent
communications sent to the Imperial Government through the various State Governors,
there would be the possibilitj' of dissension and discord. There should be only one
Australian voice heard in London, and to secure that, every official communication
relating to public matters within the Commonwealth should go through the Governor-
General. (Mr. A. Deakin, Conv. Deb., Adel., p. 1177.)

The proposed new clause was strongly objected to by Sir Edward Braddon and Mr.
Kingston. It was agreed that the federation should speak with only one voice on behalf
of Australia generally, but subject to the qualification that it should only speak on
national aflfairs, and that it should leave State affairs to the management of the States
without the slightest interference. If every communication relating to State affairs had
to pass through the Governor-General, it would mean the subordination and degradation
of the office of State Governor to the position occupied by a Lieutenant-Governor in
Cana^ia. The States would regard it as objectionable to have to send their reserved
Bills to the Imperial Government through the Governor-General. It would be a serious
blow to the autonomy of the States, and likely to lead to friction between the
Governments of the States and the Fedei-al Government ; it might result in the loss of
. power and prestige, which it was not intended that the States should suffer. The
proposed clause was negatived.

Loss OF Executive Power. — Among the prominent executive powers to be
transferred from the States to the Federal Government are the administration of the
customs and excise departments, and the control of the payment of bounties, from the
establishment of the Commonwealth ; the administration of the post, telegraph, and
telephone departments, the command-in-chief of the naval and military forces, the
management of light-houses, light-ships, beacons, buoys, and quarantine, on dates to be
proclaimed by the Governor-General after the establishment of the Commonwealth.

Gain of Executive Powkr. — The Governments of the States have, under the new
Constitution, assigned to them some new executive powers, among which may bo
mentioned the issue of writs for election of senators (sec. 12) ; the certification to the
Governor- General of tlie names of senators chosen for each State (sec. 7) ; on the place
of a senator becoming vacant, before the expiration of his term of office whilst the
Houses of Parliament of the State are not in session, the appointment of a person to hold
the place temporarily (sec. 15).

§ 447.]

THE STATES. 938

Sa^"ing of ponrer of State Parliaments.

1 07. Every power of the Parliament of a Colony"' which
has become or becomes a State, shall, unless it is by this
Constitution exclusively vested in the Parliament of the
Commonwealth or withdrawn from the Parliament of the
State, continue as at the establishment of the Commonwealth,
or as at the admission or establishment of the State, as the
case may be.

UsiTKD Statks — The powers not granted to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively or to the people. -
Amendment X.

SwiTZERLA.vD. The Cantons are sovereign, so far as their sovereignty is not limited by the
Federal Constitution ; and, as such, they exercise all the rights which are not delegated to
the Federal Government. — Art. 3.

Historical Note. — Clause I, Chap. V. of the Commonwealth Bill of 1891, was as
follows : —

" All powers which at the date of the establishment of the Commonwealth are vested
in the Parliaments of the several Colonies, and which are not by this Constitution
exclusively vested in the I'arliament of the Commonwealth, or withdrawn from the
Pai'liaments of the several States, are reserved to, and shall remain vested in, the
Parliaments of the States respectively." (Con v. Deb., Sj'd. [1891], pp. 849-50.)

At the Adelaide session, 1897, the clause was passed almost verbatim. At the
Melbourne session, before the first report, it was re-drafted as follows : —

" All powers of the Parliament of a colony or province which at the establishment
of the Commonwealth or afterwards liecomes a State, except such powers as are by this
Constitution exclusively veste<l in the Parliament of the Commonwealth or withdrawn
from the Parliament of the State, shall continue as at the establishment of the Common-
wealth, or as at the admission or establishment of the State, as the case may be."

After the fourth report the clause was altered to its present form.

§ 447. " Power of the Parliament of a Colony."

The Parliament of each State is a creation of the Constitution of the State. The
Constitution of each State is preserved, and the parliamentary institutions of each State
are maintained without any structural alteration, but deprived of power to the extent to
which their original legislative authority and jurisdiction has been transferred to the
Federal Parliament. In the early history of the Commonwealth the States will not
seriously feel the deprivation of legislative power intended by the Constitution, but as
Federal legislation becomes more active and extensive the powers contemplated bj' the
Constitution will be gradually withdrawn from the States Parliaments and absorbed by
the Federal Parliament. The powers to be so withdrawn may be divided into two
classes-^" exclusive" and '• concurrent." Exclusive powers are those absolutely with-
drawn from the State Parliaments and placed solely \vithin the jurisdiction of the Federal
Parliament. Concurrent powers are those which may be exercised by the State
Parliaments simultaneously with the Federal Parliament, subject to the condition that,
if there is any conflict or repugnancy between the Federal law and the State law
relating to the subject, the Federal law prevails, and the State law to the extent of its
inconsistency is invalid.

Exclusive Powers. — The following are the powers which in the course of time will
be absolutely withdrawn from the States : —

(1.) Power to make laws vtith respect to the seat of (Government (sec. 52 — i.).
This power will become exclusive on the acquisition ot the territory
within which the seat of Government is situated (sec. 1 25).

934 COMMENTARIES ON THE CONSTITUTION. [Sec. 107.

(2.) Power to make laws with respect to places acquired by the Commonwealth
for public purposes {sees. 52 — i. and 122).

(3. ) Power to make laws with respect to any part of a State surrendered by the
State to and accepted by the Commonwealth (sec. Ill), or to territory
placed by the Queen under the authority of and accepted by the Common-
wealth (sec. 122).

(4. ) Power to make laws with respect to departments of the public service
transferred to the Commonwealth (sec 52 — ii.). This power will become
exclusive immediately upon the transfer of the departments.

(5.) Power to make laws imposing duties of customs and of excise (sec. 90).
This power will become exclusive on the imposition of uniform duties of
customs.

(6.) Power to make laws granting bounties on the production or export of
goods (sec. 90). According to the literal words of the Constitution this
power does not become exclusive until the imposition of uniform duties
of customs.

(7.) Power to make laws with respect to the naval and military defence of the
Commonwealth and of the States (sec. 51 — vi.). This power becomes
exclusive on the establishment of the Commonwealth (sec. 114).

(8.) Power to make laws with respect to the coinage of money (sec. 51 — xii.,
and sec. 115).

(9.) Power to make laws with respect to legal tender in anything but gold and
silver coin (sec. 115).

CoNCURKENT PowEKS. — Of the 39 classes of subjects enumerated in sec. 51, with
respect to which the Federal Parliament has power to make laws, 13 are quite new, and
are applicable only to the Commonwealth, having been created by the Constitution, aud
are of such a character that they could only be vested in and effectually exercised by the
Federal Parliament ; such as : The power to borrow money on the credit of the Common-
wealth, fisheries in Australian waters beyond territorial limits, and sub-sections xxiv.,
XXV., xxix., XXX., xxxi., xxxiii., xxxv., xxxvi., xxxvii., xxxviii., and xxxix. Three of
those 39 classes of subjects, viz. : —

(1.) Bounties (except aids on mining for gold, silver, or metal) — after the
imposition of uniform duties of customs (sec. 90).

(2.) Naval and military defence (sees. 51 — vi. and 114).

(3.) Coinage and legal tender (sees. 51— xii. and 115).
formerly vested in the States -are exclusively within the competence of the Federal
I'arliament. Trade and Commerce is a concurrent power, but a branch of it, viz., the
power to impose duties of customs and excise, becomes exclusively vested in the Federal
Parliament on the imposition of uniform duties of customs (sec. 90). This leaves, in the
list of 39 subjects, 23 old powers which formerly belonged to the States, but are now
concurrently vested in the State Parliaments and the Federal Parliament, subject to the
condition imposed by sec. 109. These concurrent powers are as follows: —

(1.) Astronomical and meteorological observations (viii. ).

(2.) Banking, other than State banking ; also State banking extending beyond
the limit of the State concerned, the incorporation of banks, and tlie
issue of paper money (xiii, ).
3.) Bankruptcy aud insolvency (xvii.).

(4.) Bills of exchange and promissory notes (xvi.).

(5.) Census and statistics (xi.).

(6.) Copyrights, patents of inventions and designs, and trade-marks (xviii.).

§ 447.] THE STATES. 935

(7.) Divorce and matrimonial causes ; and in relation thereto, parental rights,
and the custody and guardianship of infants (xxii.).

(8. ) Foreign corporations, and trading or financial corporations formed within
the Commonwealth (xx.).

(9.) Immigration and emigration (xxvii.).

(10.) Influx of criminals (xxviii.).

(11.) Insurance, other than State insurance ; also State insurance extending

beyond the limits of tho State concerned (xiv.).
(12.) Invalid and old-age pensions (xxrii. ).
(13.) Light-houses, light-ships, beacons and buoys (vii.).
(14.) Marriage (xxi.).
(15.) Naturalization and aliens (xix.).
(16.) People of any race, other than the aboriginal race in any State, for whom

it is deemed necessary to make special laws (xxvi. ).
(17.) Postal, telegraphic, telephonic, and other like services (v.).
(18.) Quarantine (ix. ).
( 19. ) Railways, control with respect to transport for naval and military purposes

of the Commonwealth (xxxii.).
(20.) Railway coustruction and extension in any State with the consent of that

State (xxxiv.).
(21.) Taxation; but sa as not to discriminate between States or parts of

States (ii.).
(22.) Trade and commerce with other countries, and among the States (i.) ;

except that on the imposition of uniform duties of customs the power to

impose duties of customs and excise becomes exclusively vested in the

Federal Parliament (sec. 90).
(23.) Weights and measures (xv.).
Residcary Legislative Powers. —The residuary authority left to the Parliament
of each State, after the exclusive and concurrent grants to the Federal Parliament,
embraces a large mass of constitutional, territorial, municipal, and social powers,
including control over :

Agriculture and the cultivation of the soil :

Banking — ^t&tB banking within the limits of the State :

Borrotcing money on the sole credit of the State :

BountitH and aids on mining for gold, silver, or metals :

Charities — establishment and management of asylums :

Constitution of State : amendment, maintenance and execution of

CorporatioTix—otheT than foreign corporations and trading or financial cor-
porations :

Court)! — civil and criminal, maintenance and organization for the execution of
the laws of a State :

Departments of State Oovernment4 — regulation of

Education

Factories

Fisheries within the State :

Foresti

Friendly Societies

Game

Health

Inspection of goods imported or proposed to be exported in order to detect
fraud or prevent the spread of disease :

936 COMMENTARIES ON THE CONSTITUTION. [Sec. 107.

Insurance - State Insurance within the limits of the State :

Intoxicants — the regulation and prohibition of the manufacture within the State

of fermented, distilled, or intoxicating liquids :
Justice — Courts :

Land — management and sale of public lands within the State :
Licenses — the regulation of the issue of licenses to conduct trade and industrial
operations, within the State, such as liquor licenses and auctioneers'
licenses. Subject however to sec. 92 :
Manufactxires — see factories :
Mines and Mining :

Municipal institutions and local government :

Officers — appointment and payment of public officers of the State :
Police - regulations, social and sanitary :
PrJsoJis— State prisons and reformatories :
Raihoays — control and construction of railways within the State, subject to^

constitutional limitations (see Restricted Powers) :
Rivers — subject to constitutional limitations (see Restricted Powers) :
Shops — subject to constitutional limitations (see Restricted Powers) :
Taxation on order to the raising of revenue for State purposes (see Restricted

Powers) :
Trade and Commerce within the State (see Restricted Powers) :
Works — construction and promotion of public works and internal improve-
ments, subject to the constitutional limitations (see Restricted Powers) :

Restricted Powers. — Some powers reserved to the States can only be exercised
8vb modo — subject to conditions and limitations speciiied by the Constitution :

Bounties — A State may, with the consent of both Houses of the Federal Par-
liament, expressed by resolution, grant any aid or bounty on the produc-
tion or export of goods (sec. 91) :
Naval and Military Forces — A State va&y with the consent of the Federal

Parliament raise and maintain naval and military forces (sec. 114) :
Railways— A State may construct, use, and control its railways, but subject to
Federal control with respect to transport for naval and military purposes
of the Commonwealth (sec. 51 — xxxii.) and subject to the rule that in
the use and control of its railways the State may be forbidden to make
any preferences or discriminations, which in the judgment of the Inter-
State Commission are undue and unreasonable, or unjust to any State
(sec. 102) :
Rivers — A State and its residents have the right to the reasonable use of the
waters of rivers within the State for conservation or irrigation (sees.
98, 100) :
Taxation of Federal property —A State may, with the consent of the Federal
Parliament, impose any tax on property of any kind belonging to the
Commonwealth (sec. 114) :
Taxation — A State may impose taxation so long as it does not conflict with
federal taxation, and so long as it does not violate the rule of inter-state
freedom of trade and commerce. It is forbidden to impose duties of
customs and excise after the imposition of uniform duties of customs by
the Federal Parliament (sees. 90, 92) :
New Legislative Powers.— By the Federal Constitution certain new legislative
powers are conferred on the Parliament of each State, the exercise of which is necessary
for the constitution of the Federal Parliament. The Parliament of each State i»
permanently endowed with power to make laws for determining the times and places of
elections of senators for the State (sec. 9). Until the Federal Parliament otherwise
provides, the Parliament of each State may make laws prescribing the method of

§§447-448.] THE STATES. 937

choosing the senators for that State (sec. 9). Until the Federal Parliament othenvise
provides, the Parliament of any State may make laws for determining the divisions in
each State, for which members of the House of Representatives may be chosen, and the
number of members to be chosen for each division (sec. 29). Until other provision is
made by the Federal Parliament, the qualification of electors of members of both Federal
Houses is, in each State, that which is prescribed bj- the law of the State as the
qualification of electors of the more numerous House of the Parliament of the State (sec.
30). The laws in force in each State, for the time being, relating to elections for the
more numerous House of the Parliament of the State, apply to the election of members
of the Federal Parliament, as far as practicable, and until the Federal Parliament makes
other provision (sees. 10 and 31). If the place of a senator becomes vacant before the
expiration of his term of sernce, the Houses of Parliament of the State for which he
w as chosen, sitting and voting together, are authorized to choose a person to hold the
place until the expiration of the term, or until the election of a successor (sec. 15).

Saving of State laws.

108. Every law in force in a Colony which has become
or becomes a State, and relating to any matter within the
powers of the Parliament"® of the Commonwealth, shall,
subject to this Constitution, continue in force in the State ;
and, until provision is made in that behalf by the Parliament
of the Commonwealth, the Parliament of the State shall
have such powers of alteration and of repeal"^ in respect ot
any such law as the Parliament of the Colony had until the
Colony became a State.

Historical Xote. — Clause 2, Chap. V. of the Commonwealth Bill of 1891 was as
follows : —

" All laws in force in any of the colonies relating to any of the matters declared by
this Constitution to be within the legislative powers of the Parliament of the Common-
wealth shall, except as otherwise provided by this Constitution, continue in force in the
States respectively, and may be repealed or altered by the Parliaments of the States,
until other proWsion is made in that behalf by the Parliament of the Commonwealth."

At the Adelaide session, 1897, this clause was adopted verbatim. At the Melbourne
session it was verbally amended. (Conv. Deb., Melb., pp. 642-3.) It was redrafted
after the fourth report.

§ 448. " Any Matter Within the Powers of the
Parliament."

The preceding section declares how the Federal Constitution ^vill affect the powers
of the Parliament of a State ; it pro^^des that those powers not exclusively vested in
the Federal Parliament, or withdrawn from the States, continue as at the establishment
of the Commonwealth. This section declares how the Federal Constitution \*nll affect
the laws in force in a colony which has become a State. The powers of a Parliament are
those conferred on it by its Constitution. The laws of a Parliament are its acts passed
in the exercise of its powers. The possession of power is different .from the exercise of
jjower ; powers may not conflict, but their exercise may ; in the event of a conflict the
laws of the Union are supreme. (Lewis, Fed. Power Over Commerce, p. 39. )

938 COMMENTARIES ON THE CONSTITUTION. [Seo. 109.

Every law in force in a colony, relating to any matter witiiin the power of the
Federal Parliament, continues in force, subject to the Federal Constitution. In con-
sidering what laws remain in force and how long, regard must be had to the distinctions
between different classes of powers.

As regards laws of the States relating to matters in which the Federal Parliament
is given concurrent powers, no difficulty arises. Such laws clearly remain in force
except so far as they may be inconsistent with laws passed by the Federal Parliament in
the exercise of its concurrent power. When a conflict arises, the federal law prevails ;
but unless there is a conflict, the State law holds good.

As regards laws passed by a colony, or a State, in respect of any matter which has
subsequently come within the exclusive jurisdiction of the Federal Parliament, we have
already distinguished between (1) matters as to which the Federal Parliament is given
" exclusive power to make laws," and (2) matters as to which the Federal Parliament is
given "power to make laws"— not expressed to be exclusive — and as to which the
States are expressly or by necessary implication prohibited from acting. In the first
case, what is prohibited to the States is merely the making of laws, and laws already
made are not affected, unless inconsistent with federal laws ; in the second case, the
States are prohibited from either legislative or executive action, and existing laws
purporting to authorize them to deal with these matters cease to have effect. (See
Note, "Exclusive Power," § 234, supra.)

Thus the power to raise or maintain a naval or military force ; the power to coin
money ; the power to make anything but gold and silver coin a legal tender in payment
of debts, are all denied to the States and granted to the Federal Parliament ; therefore,
they become exclusively Federal powers from the establishment of the Commonwealth,
and all State laws relating thereto are dislodged and displaced once and for all.

There may thus be a distinction between two different degrees of exclusiveness, as
regards the operation of the exclusive power upon State laws passed before the character
of exclusiveness attached. But the exclusive powers of the Federal Parliament all have
one common quality ; that with respect to any matter within such exclusive power the
State Parliaments, after the exclusiveness of the power attaches, are absolutely deprived
of power. The laws which they have previously made may hold good ; but they cannot
extend, modify, alter, or repeal those laws in any way whatever, because their legis-
lative power is gone.

§ 449. "Powers of Alteration and of Repeal."

In matters within the power of the Federal Parliament concurrently with the State
Parliaments, the laws in force in a State continue until inconsistent provision is made in
that behalf by the Federal Parliament ; then they cease to have force to the extent of
their inconsistency. Subject to that contingency, the Parliament of a State may alter
or repeal laws bearing on concurrent matters, in the same way as it could before the
colony became a State. The words quoted must refer to concurrent powers. It would
be illogical to contend that they refer to powers which have become exclusively vested
in the Federal Parliament. The ability to alter or repeal must be based on concurrent
power.

Inconsistency of laws.

109. When a law of a State is inconsistent*^" with a law
of the Commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be invalid.

Historical Note.— Clause 3, Chap. V. of the Commonwealth Bill of 1891 was in
the same words, and was adopted verbatim at the Adelaide session in 1897. At the
Melbourne session, Mr. Reid suggested the insertion, after " law of theCommonwealtli,"
of the words "upon a subject within the legislative powers of the Commonwealth."

^S450.] THE STATES. 939

Mr. Symon and Mr. Isaacs explained that this was unnecessary, as a law of the Federal
Parliament outside the legislative powers of the Commonwealth would be no law.
(Conv. Deb., Melb., pp. 64Ci-4.) After the first report, Mr. Barton, at Mr. Reid's
suggestion, moved the same amendment, to remove doubts. On Mr. Reid's request for
a postponement, the amendment was withdrawn. {Id. pp. 1911-3.)

§ 450. " When a Law of a State is Inconsistent."

Our anahsis and explanations of sees. 106, 107, and 108 render it unnecessary to
■elaborate on sec. 109, which is practically a corollary to the three preceding sections.
Sec. 106 provides that the Constitution of each State is to continue, subject to the
Constitution of the Commonwealth. Sec. 107 provides that the power of each State
Parliament is to continue, subject to the Constitution of the Commonwealth. Sec. 108
provides that every law in force in a colony is to continue, subject to the Constitution
of the Commonwealth. The consequence of this subjection of State Constitution, State
Parliamentary power, and State law, to the Federal Constitution, would have been
obvious without the insertion of sec. 109. That section, however, places beyond doubt
the principle that the Federal Constitution and the laws passed by the Federal
Parliament, in pursuance of that Constitution, prevail over the State Constitutions
and the State laws passed by the State Parliaments, in pursuance of the State
Constitutions. The later laws, however, are declared to be invalid only to the extent
■of their inconsistency with the former.

" A law of the Commonwealth " means a valid law. A law passed by the Federal
Parliament outside the scope of its authority would be no law at all. (Norton r. Shelby
County, 118 U.S. 425.)

It has been held in the United States that the cases in which federal legislation will
supersede the legislation of a State are those in which the same matter is the subject of
legislation by both. (Da^ns t^ Beason, 133 U.S. 333.) When a State statute and a
Federal statute operate upon the same subject matter, and prescribe different rules con-
cerning it, and the Federal statute is one within the power of the Federal Parliament,
the State statute must give way. (Gulf, Colorado, and Santa Fe R. Co. v. Hefley, 158
U.S. 98.)

Provisions referring to Governor.

110. Tlie provisions of this Constitution relating to the
Governor of a State*^^ extend and apply to the Governor for
the time being of the State, or other chief executive officer
or administrator of the grovernment of the State.

Historical Note. — Clause 9, Chap. V., of the Commonwealth Bill of 1891 was in

identical terms, with the addition of the words "by whatever title he is designated."
At the Adelaide session, 1897, this was adopted without modification. At the Melbourne
session, drafting amendments were made before the first report and after the fourth
report. (Conv. Deb., Melb., p. 64o.)

Chap. V. of the Commonwealth Bill of 1891 also contained the two following
clauses : —

7. "In each State of the Commonwealth there shall be a Governor.

8. The Parliament of a State may make such pro\isions as it thinks fit as to

the manner of appointment of the Governor of a State, and for the
tenure of his oifice, and for his removal from office."

In Committee, Sir John Bray objected to clause 7 as unnecessary and inadvisable,
and as an interference with the States. Sir Samuel Griffith did not remember why it

940 COMMENTARIES ON THE CONSTITUTION. [Sec. 110.

was inserted, but suggested that it was to " indicate that the States are sovereign," and
are not merely to have Lieutenant-Governors. The clause was agreed to. Clause 8 was-
objected to as limiting the powers of the Crown, as an interference with the Stat©
Constitutions which was beyond the functions of the Convention, and as encouraging an
undesirable system of elected Governors. On the other hand it was urged that the
clause was merely enabling, that there should be some such power, and that the
objections were imaginary. The clause was carried by 20 votes to 19. (Conv. Deb.,
Syd., 1891, pp. 865-77.)

At the Adelaide session the clause providing that there should be State Governors
was introduced verbatim, but the clause dealing with their mode of appointment was
omitted. In Committee, Dr. Cockburn moved to insert it, as otherwise the appointment
of the Governors would practically be with the Federal Executive, as in Canada. Thi&
amendment would have enabled the Parliament of a State to provide for the electjon of
the Governor, either by the Parliament of the State, or by a mass vote of the people-
Mr. Grant suggested the substitution of "Lieutenant-Governor," and Sir John Downer
supported Dr. Cockburn, to make it clear that the State Governors are not Lieutenant-
Governors. The clause was objected to partly on the ground that the Convention had
no authority to interfere with the Constitutions of the States, even to make them more
easy of amendment than at present ; and partly on the ground that the clause was not
only a power but an invitation to the States to elect their own Governors. On the other
hand it was urged that the Constitution practically abolished the necessity for State
Governors, or at least altered the character of their office ; and that it was the duty of
the Convention to empower the States to meet the altered circumstances. Eventually
Dr. Cockbiirn withdrew his amendment on the understanding that the clause requiring
that " in each State of the Commonwealth there shall be a Governor " should also be
omitted. This was done. (Conv. Deb., Adel., pp. 992-1001.)

§ 451. " Governor of a State."

The provisions of this Constitution relating to the Governoi's of States are : —

Sec. 7, which provides that the names of the senators chosen for each State

shall be certified by the Governor to the Governor-General.
Sec. 12, which empowers the Governor of any State to cause writs to be issued

for elections of senators for the State.
Sec. 15, which empowers the Governor of a State, with the advice of his

Executive Council, to temporarily fill a vacancy in the representation of

the State in the Senate, if the Parliament of the State is not in session.
Sec. 21, which requires the President of the Senate, or the Governor-General,

to notify to the Governor of a State any vacancy in the representation of

the State in the Senate.
Sec. 84, which defines the rights of any officer in the public service of a State

who is, by consent of the Governor of the State with the advice of the

Executive Council thereof, transferred to the public service of the

Commonwealth.

^ 452.] THE STATES. 941

States may surrender territory.

111. The Parliament of a State may surrender*^^ any
part of the State to the Commonwealth ; and upon such
surrender, and the acceptance thereof by the Commonwealth,
such part of the State shall become subject to the exclusive
jurisdiction of the Commonwealth.

Historical Note. — Clause 12, Chap. V. of the Commonwealth Bill of 1891 was in
almost identical terms, and was adopted at the Adelaide session in 1897. At the
Melbourne session, a suggestion by the Parliament of Tasmania to substitute " its
territory" for "the State" was negatived. (Con v. Deb., Melb., p. 646.) Drafting
amendments were made after the fourth report.

§ 452. '* The Parliament of a State may Surrender."

A State, through the legislative action of its Parliament, may surrender any part of
its territory to the Commonwealth. The Commonwealth, through the Federal Parliament,
may accept the surrendered territory, which thereupon becomes subject to its exclusive
jurisdiction.

This provision was contained in the Bill of 1891, and seems to have had reference to
two other provisions of that Bill : — namely, Clause 53-ii., Chap. I., which, following the
words of the Americal Constitution, gave the Federal Parliament exclusive power with
respect to the government of anj' territory ' ' which may by surrender of any State or
States and the acceptance of the Parliament become the seat of Government of the
Commonwealth," and the exercise of like authority over all places acquired by the
Commonwealth with the consent of a State for public purposes ; and Clause 3, Chap. VL,
which empowered the Parliament to make laws for the provisional government of any
territory surrendered by the State to or accepted by the Commonwealth.

The Bill of 1891 thus contemplated two kinds of territory which the Commonwealth
might acquire from a State by surrender and acceptance : namely, { I ) territory surrendered
to the Federal Government for the special purpose of the seat of Government, or other
public purposes ; and (2) territory surrendered, to be provisionally administered by the
Federal Government until the time should be ripe for its establishment as a new Stale
or States. Between these two kinds of federal territory the American authorities show
that there is a fundamental difference. Territory ceded to the " exclusive jurisdiction"
of the Federal Government for special purposes cannot be erecteil by the Federal
Government into new States, or given anything but purely municipal powers of self-
government. Exclusive jurisdiction does not necessarily mean unlimited jurisdiction ;
the Federal Government cannot delegate this exclusive power to a local legislature —
though it can, by ceding the territory back to the State from which it was obtained, or
to some other State, extinguish the exclusive power altogether. (Stoutenburgh v.
Hennick. 129 U.S. 141 ; Burgess, Pol. Sci. II. p, 160 ; Von Hoist, Const. Law, p. 173.)
On the other hand, territory ceded to the Federal Government to be organized under a
territorial Government may be so organized, and may, in the discretion of the Federal
Legislature, be erected into a State. (Burgess, Pol. Sci. II. p. 161.)

The two kinds of territories were clearly contrasted by Marshall, C.J., in Lough-
borough V. Blake, 5 Wheat, at p. 324, when he distinguished between " a part of the
society which is either in a state of infancy, advancing to manhood, looking forward to
complete equality so soon as that state of manhood shall be attained, as is the case with
the Territories ; or which has voluntarily relinquished the right of representation, and
has adopted the whole bodj' of Congress for its legitimate government, as is the case
with the District."

942 COMMENTARIES ON THE CONSTITUTION. [See. 112,

Wl ethei" this clause was primarily designed to meet the ease of the seat of Govern-
ment, and other places surrendered for public purposes, or whether it was intended to
apply to territories generally, there is nothing in the debates to show. Even without
this clause, the two other provisions, quoted above, would have clearly implied a power
to acquire both kinds of territory ; and this clause was probably added to remove any
doubt that might exist as to whether the States - not having had, before Federation, the
sovereign power of ceding territory — could do .so without an express grant of power.

Under the Constitution as it now stands the acquisition of territory for the seat of
Government seems to be provided for by sec. 124, and the power to acquire territorial
jjossessions by surrender and acceptance spems sufficiently implied by sec. 122. This
section, however, will enable the Commonwealth to acquire territory for special .purposes
by negotiating with the States, and without the necessity for the exei'cise of its power
of eminent domain under sec. 51 — xxxi. Territory thus acquired for special public
purposes cannot be erected into a State or granted any but purely municipal powers of
self-government ; nor can its inhabitants be given any rights which, under the Constitu-
tion, belong only to the people of the States. (See authorities cited aupra.)

States may levy charges for inspection laws.

112. After uniform duties of customs have been imposed,
a State may levy^^^ on imports or exports^^*, or on goods
passing into or out of the State, such charges as may be
necessary for executing the inspection laws*^^ of the State ;
but the net produce of all charges so levied shall be for the
use of the Commonwealth ; and any such inspection laws may
be annulled by the Parliament of the Commonwealth.

United States.— No State shall, without the consent of Congress, lay any imposts ordiities^
on imports or exports, except what may be absolutelj' necessary for executing its
inspection laws ; and the net produce cf all duties and imposts laid by any State on
imports or exports shall be for the use of the Treasury of the United States, and all such
laws shall be subject to the revision and control of the Congress. (Const. Art. I., sec. X.
sub-8. 2.

Historical Note. — Clause 1.3 of Chap. V. of the Commonwealth Bill of 1891 wa»
as follows : —

" A State shall not impose anj' taxes or duties on imports or exports, except .such
as are neces.sary for executing the inspection laws of the State ; and the net produce of
all taxes and duties imposed by a State on imports and exports shall be for the use of
the Commonwealth ; and any such inspection laws may be annulled by the Parliament
of the Commonwealth."

At the Adelaide session, the same provision was adopted, but with the introductory
words "After uniform duties of customs have been imposed," and with the sub-
stitution of " imposts or charges " for " taxes or duties." At the Melbourne session, a
suggestion by the Legislative Council of New South Wales to omit the second part of
the clause was negatived. Mr. Isaacs pointed out that, according to American decisions,
the prohibition did not apph' to inter-state trade, and would not affect the police powers
of the States. A question was raised by Mr. Henry whether the clause applied tO'
wharfage rates, and whether marine boards and harbour ti-usts would be affected. Mr.
Barton replied that charges for services were not imposts. Mr. Glynn proposed to add,
after "inspection laws of the State," the words (suggested by the Parliament of
Tasmania) ; — "Or by way of payment for services actually rendered in improvement or
maintenance of ports or harbours or in aid of navigation." Mr. Barton thought the
amendment dangerous, and it was withdrawn for further consideration. (Con v. Deb.,

§§453^55.] THE STATES. 943

Melb., pp. 646-52.) Before the first report, the clause was thrown into the enabling,
instead of the prohibitive form — the prohibition being already containe<l in sees. 90 and
92. After the fourth report the clause was further amended by the addition, after
*' imports or exports," of the woi-da " or on goods passing into or out of the State.''

§ 453. " A State may Levy."

Sec. 90 provides that after uniform duties have been imposed, the power of the
Parliament to impose duties of customs shall be exclusive. That section accordingly
prohibits the States from thereafter imposing duties of customs — a term which includes
both import and export duties on goods entering or leaving the Commonwealth.
(Webster's Internat. Diet.) Sec. 92 further provides that from the same time "trade,
commerce, and intercourse among the States . , . shall be absolutely free." That
section prohibits the States and the Commonwealth from imposing duties on goods
passing from one State to another.

This section reserves to the States, notwithstanding the above pro\'isions, the police
power of making charges which may be necessary for executing their inspection laws.
Such charges would seem to be both taxes and duties, and might, in the absence of
special provision, have been held to be within either or both of the above prohibitions.

The section, however, though it expressly reserves this police power to the States,
also makes the exercise of the power subject to control by the Federal Parliament.
State laws imposing such charges, even though they may be necessary for executing the
inspection laws of the State, may be annulled by the Federal Parliament ; and if they are
not necessarj' for that purpose, they are not protected from the prohibitions of sees. 90
and 92.

§ 454. " Imports or Exports."

It was suggested at the Convention (Deb., Melb , p. 647), on the authority of Brown
V. Houston, 114 U.S. 622, and Woodruff i-. Parham, 8 Wall. 1-23, that these words did
not apply to goods carried from one State to another, but only to goods imported from
or exported to foreign countries. On the other hand in BrowTi v. Maryland, 12 WTieat.
419, Marshall, C.J., in deciding that a charge imposed by the State of Maryland on
foreign imports was unconstitutional both as a duty on imports and as a regulation of
commerce, said : — " It may be proper to add that we suppose the principles laid dowTiin
this case to apply equally to importations from a sister State." And in Leisy r.
Hardin, 135 U.S. 100, Fuller, C.J., quoting these words, said : "Manifestly this must
be so, for the same public policy applied to commerce among the States as to foreign
commerce, and not a reason could be assigned for confiding the power over the one which
did not conduce to establish the propriety of confiding the power over the other."

In this Constitution the words imports and exports are uniformly used of foreign
imports and exports only, and the words " goods passing into or out of the State" are
used with reference to inter-state trade. (See sees. 92, 93, 95.)

§ 455. " Inspection Laws."

Definitiox. — The inspection laws of a State are those laws which a State may
enact in the exercise of its police powers, pro\nding for the official view, survey, and
examination of personal propert}', the subjects of commerce, in order to determine
whether they are in a fit condition for sale according to the commercial usages of the
world. (Foster v. Port Wardens, 94 U.S. 246.) The examination extends to the
quality, form, size, weight, and measurement of articles imported. An inspection, it is
held, is something which can be accomplished by looking at, or weighing, or measuring
the thing to be inspected, or by applying to it at ouce some crucial test. When
testimony or evidence is to be taken and examined, it is not inspection in any sense

944 COMMENTARIES ON THE CONSTITUTIONT. [Seo. 113.

whatever. (The People v. Compagnie Transatlantique, 107 U.S. 62.) In some cases
chemical analysis hiay be demanded, and in these cases State requirements that the
vendor shall furnish samples of his goods to the State chemist, and label the product
with the correct statement of its chemical ingredients, are valid. (Patapsco Guano Co.
V. Board of Agriculture, 171 U.S. 345.) The object of examination is to ascertain
whether the articles examined are fit for commerce, and to protect the citizens and the
market from fraud. (The People v. Edye, 11 Daley [U.S.] 132.) Inspection laws must
not be of a discriminating character. (Brimmer v. Rebman, 138 U.S. 78; Voight v.
Wright, 141 U.S. 62.)

Limits of Inspection Laws. — The power to inspect is not applicable to vessels and
other means of transportation. (Railroad Co. [Morgan L. and T.] v. Board of Health,
36 Louisiana Ann. 666.) Under the gaise of inspection laws a State is not permitted to
impose a heavy charge amounting to a tax or an obstruction of trade and commerce.
The courts will scrutinize the pui'pose and the amount of such a tax, and will decide
whether it is intended to violate the constitutional prohibition. (Goodwin v. Caraleigh
Phosphate Works, 119 N. Carolina, 120.) The Federal Parliament may also at any
time annul State inspection laws which are objectionable or suspected of being intended
to obstruct the freedom of inter-state trade and commerce.

Examples of Inspection Laws. — A law of Maryland requiring tobacco to be
brought to a State warehouse for inspection and branding, &c., and to pay charges for
outage and storage, held to be valid as inspection laws. (Turner v. Maryland, 107
U.S. 38. Baker, Annot. Const. 104.)

Taxes in aid of the inspection laws of a State, vinder special circumstances, have
been upheld as necessary to promote the interests of con)merce and the security «f
navigation. They are so upheld as contemplating benefits to commerce and navigation,
and as altogether distinct from imposts and excise duties, and duties on tonnage. (State
Tonnage Tax Cases, 12 Wall. 204-219. Id. )

When the right of inspection exists and is properly exercised, it applies alike to
imports and exports. (Neilson v. (iarza, 2 Woods, 287. Id.)

Inspection laws, so far as they act upon articles of exportation, are generally
executed on land, before the article is shipped ; so far as they act on importation they
are generally executed on articles which are landed. The tax or duty of inspection,
then, is a tax paid for the performance of the services and while the article inspected is
in the bosom of the country. This is an exception to the prohibition on the States to
lay duties on imports or exports, and was made because the tax would otherwise have
been within the prohibition. (Brown v. Maryland, 12 Wheat. 419-438. Id.)

This clause has reference to the inspection of property, and cannot be made to apply
to free human beings. The methods of determining whether such persons are criminals,
paupers, lunatics, &c., ai-e not to be determined by inspection laws alone. (The People
V. Compagnie Gen. Transatlantique, 107 U.S. 59. Id.)

The statute of Minnesota held unconstitutional and void in so far as it requires, as
a condition of sales in Minnesota of fresh meat for human food, that the animals from
which such meat is taken shall have been inspected in that State before being
slaughtered. The inspection thus provided for is of such character, or is burdened with
such conditions, as will prevent the introduction into the State of sound meats, the
product of animals slaughtered in other States. (Minnesota v. Barber, 136 U.S. 314. Id.)

Intoxicating liquids.

113. All fermented, distilled, or other intoxicating
liquids*^® passing into any State or remaining therein for use,
consumption, sale, or storage, shall be subject to the laws of
the State as if such liquids had been produced in the State.

Historical Note. — At the Adelaide session, Mr. Deakin moved, as an addition to
the free-trade clause (sec, 92) the words " But nothing in this Constitution shall prevent
any State from prohibiting the importation of any article or thing, the sale of which

§ 456.] THE STATES. 945

within the State has first been prohibited by the State." The object was to enable the
States to prevent the importation of articles — such as alcohol or opium — which it
deemed hurtfiil. This was then postponed in order to proceed with the financial
clauses. (Conv. Deb., Adel., pp. 875-7.) At a later stage, it having been suggested
that the clause might affect the fiscal issue, and also that power ought to be given to
regulate as well as to prohibit the sale, Mr. Deakin moved his amendment in this
form :

' ' Nothing in this Constitution shall be construed to prevent any State from
regulating the importation of opium or alcohol under conditions which are applicable
as nearly as possible to the laws relating to opium and alcohol >vithin the State."

Mr. O'Connor opposed the amendment ; partly because it was unnecessary,
American decisions showing that retail sale within the State might be prohibited ; and
partly because the mention of these two articles might dangerously limit the police
powers of the States with regard to other articles. After debate the amendment was
negatived by 15 votes to 14. {Id. pp. 1140-8.)

During the statutory adjournment, the Legislative Assemblies of Xew South Wales
and Victoria, and both Houses in South Australia, made suggestions substantially
identical with Mr. Deakin's ^' opium and alcohol"' proposal; and the Legislative
Assembly of Victoria made a suggestion (practically identical with the Wilson Act —
Note, § 456, ivjra) to add to the trade and commerce subclause these words : —

" Pro\ided that all fermented, distilled, or other intoxicating liquors or liquids
transported into aii^^ State or territory or remaining therein for use, consumption, sale,
or storage therein, shall upon arrival in such State or territory be subject to the
operation and etfect of the laws of such State or territory to the same extent and in the
same manner as though such liquors or liquids had been produced in such State or
territory."

At the Sydney session. Mi. Deakin moved ihe Victorian amendment, which after
considerable debate was carried. (Conv. Deb., Syd., 1897, pp. 1037-59.) At the
Melbourne session, before the first report, the provision was transferred, vrith verbal
amendments, to a separate clause. A further drafting amendment was made after the
fourth report.

§ 456. ** Intoxicating Liquids."

As an introduction to a study of this section, reference may be made to the leading
provisions of the Constitution with reference to trade and commerce. The first
fundamental rule is that the Federal Parliament may make laws with respect to tra<le
and commerce with other countries and among the States (sec. 51 — i.). The next rule
is that after the imposition of uniform duties of customs the Federal Parliament acquires
exclusive power to impose duties of customs and excise, and to grant bounties on the
production or export of gootls (sec. 90). The result of these two rules is to leave to the
States a concurrent power to deal with inter-state and foreign commerce, but to take
from them the power to deal with customs, excise, and bounties. The concurrent power,
however, may not be exercised in a manner inconsistent with Federal legislation. The
third rule is that each State retains the sole and exclusive power to deal with the
manufacture, production, use, and consumption of articles of commerce, and the sole
and exclusive power to regulate the internal trade and commerce of the State - that is,
trade and commerce which begins and ends in the State— ^subject to the limitation that it
may not grant bounties on the production of goods (sec 51 — iii.). The next important
rule is, that on and after a certain event trade and commerce and intercourse among the
States, whether by internal carriage or ocean navigation, shall be absolutely free (sec. 92).
This mandate, in favour of the freedom of inter-state trade and commerce, is as binding
on the Federal Parliament as on the States. Neither the Federal Parliament nor the
States are permitted to make any rule or regulation of commerce obstructing the free
transportation of goods, wares, and merchandise from one State into another. To this
rule of freedom sec. 113 is intended to enable the States to make an exception or quali£-
60

946 COMMENTARIES ON THE CONSTITUTION. [Sec. 113.

cation in the case of fermented, distilled, or other intoxicating liquids. As to the manner
in which the section will operate several cases decided in the United States under a
corresponding law will afford a valuable guide.

Prior to the j'ear 1888, the law of the State of Iowa permitted the sale of foreign
liquors imported under the laws of the United States, subject to the condition that the
sale was effected by the importer in the original casks and packages. In 1888 the law
was amended so as to provide that, whether imported or not, wine could not be sold in
Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes,
nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal
purposes, and not even for those limited purposes except by registered pharmaceutists
having proper permits. Certain brewers doing business in the State of Illinois shipped
beer in sealed packages to Keokuk in the State of Iowa, where it was offered for sale in
the original packages. A certain quantity of the beer was seized bj^ Hardin, the City
Marshall of Keokuk, under colour of authority of the law of Iowa. The brewers then
brought an action against Hardin to recover the beer seized. The local court gave
judgment for the plaintiffs on the ground that the State law was invalid. This judgment
was reversed by the Supreme Court of Iowa. The brewers appealed to the Supreme
Court of the United States, which allowed the appeal and restored the judgment of the
local court. The ground of the decision was that the State could not pass a law
obstructing free trade and intercourse between the States. At the same time the court
suggested no doubt as to the power of the State to control the sale of imported articles,
once they had become mixed with the general mass of property in the State. (Leisy i\
Hardin [1890], 135 U.S. 100.)

It was in consequence of the decision in Leisy v. Hardin that on 8th August, 1890,
a statute was passed by Congress now known as the Wilson Act, which provided : —

"That all fermented, distilled, or other intoxicating liquors or liquids transported
into any State or Territory or remaining therein for use, consumption, sale or storage
therein, shall upon arrival in such State or Territory be subject to the operation and
effect of the laws of such State or Territory enacted in the exercise of its police powers,
to the same extent and in the same manner as though such liquids or liquors had been
produced in such State or Territory, and shall not be exempt therefrom by reason of
being introduced therein in original packages or otherwise. "

As soon as this Act was passed it was challenged as involving an imconstitutional
delegation of power by Congress. The power conferred by the Act was used bj' several
•states, and its meaning and constitutionality became the subject of judicial decision.
No doubt as to its constitutionality was suggested by any of the courts. An Act passed
by Congress in 1886, providing that the transportation of and traffic in nitroglycerine
and other high explosives might be regulated or prohibited by the States, had never been
questioned. It had been the settled practice of Congress to grant to the States on the
sea-board permission to collect duties at their ports for the improvement of harbours, the
erection of piers and light-houses, and the appointment of health officers. Such laws did
not amount to a delegation of power by Congress to the States. So with reference to
such a law as the Wilson Act. It delegated no power to the States ; it conferred no
additional authority on the States ; it merely removed an impediinent to the operation of
State law. State statutes passed before the Wilson Act were not void but only inopera-
tive ; they became effective at once upon the passage of the Federal statute without
being re-enacted. (Bo Rahrer, 140 U.S. 545 ; Prentice and Egan, Commerce Clause,
p. 81.)

The construction of the Wilson Act was a more difficult question. The most
important point was whether under its provisions a State could forbid the introduction
of intoxicating liquors within its limits. In the case of State v. Rhodes, 90 Iowa, 490.
it was held that liquor becomes subject to the police laws of the State immediatel}- upon
its arrival within tlie State, and that under the law of Iowa its transportation was
unlawftil. This construction of the statute was not adopted by the Supreme Court of
the United States, which held that the Federal statute did not authorize a State to

§456.] THE STATES. 947

forbid the introduction of intoxicating liquor, but recognizee! the right of transportation
and permitted the State law to operate upon the liquor only w:hen its carriage was com-
pleted, and when it had reached its destination and been delivered to the consignee.
(Rhodes v. Iowa, 170 U S. 412.)

The \^'ilson Act has been further considered by the courts in litigation arising out of
the South Carolina Dispensary Act. This law forbade the sale of intoxicating liquor,
within the State, by any private individuals. It prohibited the importation of liquor
for use by the importer, but permitted the use of domestic liquor. It vested in the State
the sole right to sell liquor. Officers were appointed throughout the State to dispense
liquor at convenient places, and the profits arising from the business were appropriated
to the State, county, and municipal treasuries. This law was declared void by the
Supreme Court of South Carolina. (McCuUough v. Brown, 41 S. Carol. 220 ; Prentice
and Egan, Commerce Clause, p. 80.) The decision in that case has since been overruled,
but some of its doctrines have been approved of in Federal courts. This Dispensarj'
Act, it is said, is not a proper exercise of the police power so far as it discriminates
between inter-state and domestic commerce, in articles the manufacture and use of
which are lawful. A State could not forbid the importation of liquor for use by the
importer while it permitted the use of domestic liquors. (Donald v. Scott, 67 Fed-
Rep. 854 and 165 U.S. 558.) In the case of Vance v. Vandercook Co., 170 U.S. 438, it
was held that the fact of the State law- permitting the sale of liquor, subject to certain
restrictions, did not prevent the law from being an exercise of police power. The
Federal Act, it was said, was passed to allow State regulations to operate on the sale of
original packages of intoxicants brought from other States ; it was not intended that a
State should be unable to control the liquor traffic except by prohibition. The effect of
the decision in this case is that the importation of intoxicating liquors, for use by the
importer, cannot be prohibited under the VA'ilson Act, but that upon their importation
for sale they come within the operation of the Act and State laws founded thereon.
(Prentice and Egan, Commerce Clause, p. 81.)

Section 113 may now be compared with the Wilson Act, on which it is founded. It
will be at once seen that it is not intended to authorize the States to prohibit the
introduction of intoxicating liquids ; once introduced they cannot be prevented from
reaching their destination— the consignee. What the section provides is that intoxicating
liquids, upon passing into any State for use, consumption, sale, or storage, shall become
subject to the laws of the State as if they had been produced in the State. They are
liable to the same licensing laws as locally produced intoxicants ; they are liable to the
same restrictive and regulating laws ; thej- are liable to the same prohibitive laws.
Their sale may be restricted to certain limited purposes ; or to certain defined localities ;
it may be allowed to be conducted by certain qualified persons only; or it maybe
forbidden altogether. The only condition to the legality of the liquor laws of a State is
that thej- must apply without discrimination to intoxicants locally produced as well as
to those imported.

The liquor laws of a State would only be allowed to apply to intoxicants passing
into a State for use, consumption, sale, or storage. They m ould not imply to intoxicants
passing into a State for the purpose of being, transpoited directly and without the
intervention of a sale into another State. (See notes, § 163, pp. 528, 548, supra.)

Prohibitiox and Local Optiox. — The Federal Parliament has not control over
the liquor traffic as extensive as that exercised by the Parliament of Canada, which has
power to regulate " trade and commerce" generally. The Federal Parliament can deal
only with trade and commerce with other countries and among the States. This excludes
the trade and commerce which begins and ends in a State. A federal law authorizing
the establishment of a system of local option under which the sale of liquor could be
prohibited in defined areas, or restricted to defined areas, would not be a law relating
to trade and commerce "among the States," but a law relating to trade and commerce
in those defined localities " within the States."

948 COMMENTARIES ON THE CONSTITUTION. [Sec. 114.

The Federal Parliament has no power to directly prohibit the manufacture of
intoxicants or to establish a local option system in any State. It has, however, the
exclusive power to impose duties of customs and excise. This will enable it to tax
heavily, or lightly, all intoxicating liquids imported into the Commonwealth, or produced
in,any State — a power which may be exercised in a manner calculated to influence the
liquor traffic in a material degree (sec. 90). The Federal Parliament has also the exclusive
authority to grant bounties on the production or export of goods (sec. 90). This will
enable it, if thought necessary, to directly encourage the manufacture of intoxicants by
a pecuniary subsidy. The Parliament of a State would probably be able, under sec. 1 13,
to prohibit the production, or sale, of intoxicants within the State limits, but should the
Federal Parliament pass a law offering bounties for the production or export of those
intoxicants, an inconsistency would arise, and the State law in that case would be invalid
to the extent of the inconsistency (sec. 110). (See this question discussed, p. 548, supra.)

States may not raise forces. Taxation of property of Commonwealth or State.

114. A (State shall not, without the consent of the
Parliament of the Commonwealth, raise or maintain*^'^ any
naval or military force, or impose any tax on property of any
kind belonging to the Commonwealth*"'^^, nor shall the Com-
monwealth*^^ impose any tax on property of any kind
belonging to a State.

Unitkd States.— No State shall, without the consent of Conprress, lay any duty of tonnage,
keep troops or ships of war in time of peace .... or engage in war unless actually
invaded, or in such imminent danger as will not admit of delays. - Const. Art. I., sec. X.,
sub-s. 3.

Canada. — No lands or propertj' belonging to Canada or any Province shall be liable to
taxation.— B.N.A. Act, 1867, sec. 125.

Historical Note. — As introduced in the Sydney Convention of 1891, the clause
ran : —

"A State shall not, without the consent of the Parliament of the Commonwealth,
impose any duty of tonnage, or raise or maintain any naval or military force, or
impose any tax on any land or other property belonging to the Commonwealth."

In Committee, on Sir Samuel Griffith's motion, the words ' • nor shall the Common-
wealth impose any tax on any land or property belonging to a State" were added.
(Conv. Deb., Syd. [1891], 883.) At the Adelaide session, 1897, the clause was introduced
in substantially the same form. In Committee, Mr. Henry asked how the words
" tonnage dues " would affect Marine Boards and Harbour Trusts, which were dependent
for revenue on tonnage dues. Mr. Barton thought the words unnecessary, since if they
were payments for services they ought not to be interfered with, and if taxes they
would be unconstitutional as interfering with free trade. The words were omitted. At
the Melbourne session, the clause was shortly discussed. (Conv. Deb., Melb., p. 653.)
A verbal transposition was made after the fourth report.

§ 457. " Raise or Maintain."

A State is forbidden without the consent of the Federal Parliament to raise or
maintain any naval or military force. This inhibition, coupled with sec. 51 — vi., has
the effect of conferring on the Federal Parliament exclusive power with respect to naval
and military forces. The negation in this section is so strong, " no State shall
raise or maintain," that it begins to operate immediately on a colony becoming a State ;
thereafter it will render the raising maintenance of naval and military forces by a State
absolutely illegal. The inhibition, however, is accompanied by the condition that
it may be removed with the consent of the Federal Parliament.

§§457-458.] THE STATES. 949

Sec. 69 provides that the departments of naval and military defence in each State
shall be transferred to the Commonwealth on a date to be proclaimed by the Governor-
General. A question arises as to the position of the existing naval and military forces
in the different colonies during the period after the establishment of the Commonwealth
and before the actual transfer. No permissive law can be passed until the Parliament
meets ; and it can hardly be intended that during that interval the maintenance of the
existing forces is illegal. It has been suggested, in order to meet this diflBculty, that
" maintain" should be read as subsidiary to " raise," so that the words should mean
"no State shall raise or (having raised) maintain." The difficulty could, of course, be
evaded by the transfer of the defence departments simultaneously with- the establishment
of the Commonwealth.

§ 458. " Impose any Tax on Property . . Belonging to
the Commonivealth."

The immunity of Commonwealth property from taxation by the States is secured
by this section. A State may not impose any tax on property of any kind belonging to
the Commonwealth without its consent given through the agency . of the Federal
Parliament. The property of the Commonwealth will include all revenues derived from
taxation (sec. 51 — ii.) ; money borrowed on the credit of the Commonwealth (sec. 51 —
Iv.); land, places, buildings, and chattels acquired by the Commonwealth from the
States, or from private individuals (sec. 51 — xxxi.) ; such railway's as may be taken over by
the Commonwealth from the States (sec. 51 — xxxii. ) ; such railways as may be constructed
or extended by the Commonwealth for the States (sec. 51 — xxxiii.) ; revenue derived
from fines, penalties, fees, and forfeitures imposed by Federal laws (sec. 53) ; depart-
mental buildings and property w hich will be transferred to the Commonwealth by the
States, such as post and telegraph buildings and materials, military and naval works,
fortifications, equipments, war materials, war vessels, &c., light-house and lightships,
beacons and buoys, and quarantine stations (sec. 69) ; and property of any kind used
in connection with departments taken over (sec. 85 — i.).

Under the Constitution of the United States, which contains no express inhibition
like this, it has been held that the States cannot tax the property and lawful agencies
and instrumentalities of the Federal Government, no matter in whose hands they may
be found. McCulloch v. Maryland, 4 Wheat. 316 ; Dobbins v. Commissioners of Erie
County, 16 Pet. 435 ; Bank Tax Cases, 3 Wall. 573 ; Compare Leprohon v. City of
Ottawa, 2 Ont. App. 522.)

A stock of the United States which constitutes the whole or a part of the capital
stock of a State bank is not subject to State taxation. Such taxation would be a tax
upon the exercise of the powers conferred upon Congress. If such power were recognized
in the States it might be carried to such ext«nt as to, in efiFect, destroy this power in
Congress. (The People of New York v. Commissioners of Taxes, 2 Wall. 200. Baker,
Annot. Const. 17.)

Securities of the United States are exempt from State taxation, and this immunity
extends to the capital stock of a corporation if made up of such public funds. (Pro-
vndent Inst. u. Massachusetts, 6 Wall. 611 ; National Bank f. Kentucky, 9 Wall. 353.
Id. 18.)

United States certificates of indebtedness issued by the general Government directly
to creditors are subject to taxation by the States. (The Banks v. Mayor, 7 Wall. 16. Id.)

Where the capital of a bank is invested in Government bonds it cannot be taxed by
the States. But the shares of stock may be taxed as such in hands of stockholders.
And held that the revenue law of Kentucky which imposes a tax on bank stock, and
requires the officers of the bank to pay the tax so levied on the shares of stock, is a
tax on the stockholders and not on the capital of the bank, and is valid. (National
Bank v. Kentucky, 9 Wall. 353 ; Lionberger v. Rouse, 9 Wall. 468. Id. 19.)

United States securities are not subject to taxation bv States. (Society for Savings
r. Coite, 6 Wall. 594 ; Weston v. Charleston, 2 Pet. 449 ; McCulloch v. Maryland, 4
Wheat. 316 ; Osborn v. United States Bank, 9 Wheat. 738. Id.)

950 COMMENTARIES ON THE CONSTITUTION. [Sec. 115.

§ 459. "Nor Shall the Commonwealth."

The exemption of State property from Federal taxation is also secured. The
Supreme Court of the United States has decided that the general principles of the
Constitution forbid the Congress to tax the necessary governmental instrumentalities of
the States, such as the salaries of officers and the revenues of municipal corporations, on
the ground that such a power would enable the Congress to destroy the States, which
nothing short of the amending power, the sovereignty, should be able to do in a federal
system of government. (Collector v. Day, 11 Wall. 113.) The United States courts
determine, of course, in what these necessary instrumentalities, in any particular case,
consist. (Burgess, Political Sc, ii. p. 151.)

States not to coin money.

115. A State shall not coin money*^", nor make anything
but gold and silver coin a legal tender*^^ in payment of debts.

United States.— No State shall . . . coin money ; . . . make anything but gold and
silver coin a tender in payment of debts. — Art. I., sec. x., sub-s. 1.

Historical Note. — The clause in the Commonwealth Bill of 1891 was in identical
words — with the exception of "or" for " nor." At the Adelaide session, 1897, it was
introduced and passed as it now stands. (Conv. Deb., Adel., p. 1204.) At the
Melbourne session, a suggestion by the Legislative Council of Tasmania, to insert after
"money" the words "unless the Parliament otherwise provides" was negatived. A
suggestion by the Legislative Assembly of New South Wales, to omit the provision as to
legal tender, and insert "unless the Parliament otherwise determines," was also
negatived. (Conv. Deb., Melb., pp. 653-4.)

§ 460. '' A State shall not Coin Money."

Coinage is a prerogative of the Crown (see Note, § 177, sufra). A State is
forbidden to coin money ; it cannot create a metal currency ; it cannot give to metal
any more than to paper the quality of money. The combined effect of this negation,
coupled with the operation of sec. 51 — xii., is that the coinage and legitimation of metal
money, and in fact the regulation of the whole of the monetary system of the Common-
wealth, is exclusively vested in the Federal Parliament, as against the States. That
Parliament alone will be able to create monej' and regulate its value, as well as create
paper money, and regulate its value. Its laws of course will only be operative within the
Commonwealth, and may, in accordance with the usual pi-actice, be reserved for
Imperial consideration, in order to maintain the uniformity of coinage laws throughout
the Empire.

§ 461. " Nor Make anything but Gold and Silver Coin
a Legal Tender."

The provision of this section, that the States may not make anything but gold and
silver coin a legal tender in payment of debts, would appear, at first view, to authorize
a State to make gold and silver a legal tender, in the absence of Federal legislation, and
consequently to give the States a concurrent power within those limits. It must be
noted, however, that gold and silver coin can only be impressed with the quality of
money by Federal legislation, and Federal legislation may withdraw that quality at any
time. Then the power of the States to make gold and silver a legal tender would cease ;
gold and silver metal can not be made legal tender until it is converted into coin ; it can
only be converted into coin by the Federal autliority. (Burgess, Political Sc. ii. 142.)

3 462.] THE STATES. 951

Commonwealth not to legislate in respect to religion.

116. The Commonwealth shall not make any law for
establishing any religion, or for imposing any religious obser-
vance^®-, or for prohibiting the free exercise of any religion,
and no religious test shall be required as a qualification for
any office or public trust under the Commonwealth.

Ukitrd States — No religious test sball ever be required as a qualification to any office or public
trust under the United States —Art. VI. sec. 3.

Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof. — .Amendment I.

Historical Note. — Clause 16, Chap. V. of the Commonwealth Bill of 1891 was : —
" A State shall not make any law prohibiting the free exercise of any religion. ' This
was adopted verbatim at the Adelaide session, 1897. At the Melbourne session, Mr.
Higgins moved an amendment to make the clause read : " A State shall not, nor shall the
Commonwealth, make any law prohibiting the free exercise of any religion, or imposing
any religious test or observance " Mr. Higgins argued that these words might be
necessary to prevent an implication, arising out of the recognition of Almighty Ood in
the preamble, that the Commonwealth had power to legislate upon religious matters.
The objections raised to the amendment were that the "free exercise of religion" was
too wide an expression, and might sanction objectionable rites ; and that the pro\nsion
was unnecessary, as the Federal Parliament had no power to legislate as to religion.
Mr. Higgins' amendment was negatived, as was also a suggestion by the House of
Assembly in Tasmania, to add the words " nor appropriate any portion of its revenues
-or property for the propagation or support of any religion." The clause itself was then
negatived. (Conv. Deb., Melb. , pp. 654-64.) At a later stage Mr. Higgins proposed a
new clause, in substantialh' the form of the above section. Mr. SjTnon moved, as an
amendment, to substitute the following pro\"ision : —

"Nothing in this Constitution shall be held to empower the Commonwealth to
require any religious test as a qualidcation for any public office or public trust under the
Commonwealth."'

After debate, Mr. SjTnon's amendment was negatived by 22 votes to 19, and Mr,
Higgins' clause was carried by 25 votes to 1 6. (Conv. Deb. , Melb. , pp. J 769-79. ) Drafting
amendments were made after the fourth report.

§ 462. " Any Religion or . . . any Religious Observance."

The Commonwealth is forbidden to make any law for establishing any religion or
for imposing any religious observance. A preliminary observation which should be made
is that the term Commonwealth as used in this section does not mean the Federal
community, but the Government of the Commonwealth acting through any of its agencies
or instrumentalities. The people and States constituting the Federal community could
at anj- time interpose and amend the Constitution in order to authorize the enactment,
by the Federal Parliament, of the laws now prohibited. The prohibition itself and the
circumstances under which it has found a place in the Constitution next demand attention.

By the establishment of religion is meant the erection and recognition of a State
Church, or the concession of special favoure, titles, and advantages to one church which
are denied to others. It is not intended to prohibit the Federal Government from
recognizing religion or religious worship. The Christian religion is, in most English
speaking countries, recognized as a part of the common law. "There is abundant
authority for saying that Christianity is a part and parcel of the law of the land." (Per
Kelly, C.B., in Cowan v. Milboum [1867], L.K. 2 Ex. 234.) In America the courts of the
Union and of the States find it necessary, in administering the conmion law, to take
notice that the prevailing religion is Christian. (Vidal v. Girard's Executors, 2 How.

952 COMMENTARIES ON THE CONSTITUTION. [See. 116.

127.) Consequently the fundamental principles of the Christian religion will continue
to be respected, although not enforced by Federal legislation. For example, the Federal
Parliament will have to provide for the administration of oaths in legal proceedings, and
there is nothing to prevent it from enabling an oath to be taken, as at common law, on
the sanctity of the Holy Gospel. (Cooley's Principles of Const. Law, 224 )

In considering the question of religion, the Federal Convention was called on to
decide (1) whether it was advisable to grant substantive power of this kind to the Federal
Parliament ; and if not, (2) whether it was necessary to deny this power to the Federal
Parliament. As regards the first question, it was not seriously suggested that any such
power should be granted. The only arguable point was whether it ought to be denied,
and if so, to what extent ? The Federal Parliament is a legislative body capable only
of exercising enumerated powers. Its powers are determined and limited by actual
grants to be found within the Constitution. Anj'thing not granted to it is denied to it.
If it is not granted the power to deal with religion, it cannot legislate concerning
religion. It is superfluous to deny to it what is not granted— what it does not possess.
The force of this reasoning, based on recognized canons of federal construction, was
generally conceded. At the same time it was found that the American Constitution
contained two important negative sections relating to religion. As originally drawn, that
Constitution, in Art. VI., s. 3, declared that no religious test should ever be required as a
qualification for an office or public trust under the United States Government. By the
first amendment it was provided that Congress should make no laM's respecting an
establishment of religion or prohibiting the free exorcise thereof. The prohibition of
religious tests was a denial of power — a denial which was necessary, because otherwise
there would have been nothing to prevent the Federal legislature, in defining the
qualifications for federal office, to impose such tests. It was therefore a provision of
practical use and value. The prohibition contained in the first amendment was one of
the ten articles in the so-called " American Bill of Rights " adopted after the establishment
of the Union, in order to satisfy popular demands and sentiments. No logical or
constitutional reasons have been stated whj' such a negation of power which had never
been granted and which, therefore, could never be legally exercised, was introduced into
the instrument of Government. It does not appear that its necessity has ever been
demonstrated. Still, that was one of the grounds on which Mr. H. B. Higgins asked
the Convention of 1898 to adopt the section now under consideration.

The strongest argument, however, for the adoption of the earlier portion of sec. 116,
was found in the special form of the preamble of the Constitution Act, which recites
that the people of the colonies, " humbly relying on the blessing of Almighty God, have
agreed to unite in one indissoluble Commonwealth." Referring to this recital, it was
stated by Mr. Higgins that, although the preamble to the Constitution of the United
States contained no such words as these, it had been decided by the courts in the year
1892 that the people of the United States were a Christian people ; and although the
Constitution gave no power to Congress to make laws relating to Sunday observance,
that decision was shortly afterwards followed by a Federal enactment declaring that the
Chicago Exhibition should be closed on Sundays. This law, he said, was passed simply
on the ground that among Christian nations Christian observances should be enforced.
(Conv. Deb., Melb., p. 1734.) If, then, such Federal legislation could be founded on a
Constitution which contained no reference whatever to the Almighty, how much more
likely was it that the Federal Parliament might, owing to the recital in the preamble,
be held to possess power with respect to religion of which we have no conception.
Consequently, argued Mr. Higgins, the power to deal with religion in every shape and
form should be clearly denied to the Federal Parliament. These arguments were allowed
to prevail, and the provisions of sec. 116 became part of the Constitution. (See, however,
note, § 4, supra, " Humbly relying on the blessing of Almighty God," and Church of
the Holj' Trinity v. United States, 143 U.S. 457, there cited.)

The appearance of this section in a chapter purporting to deal with the States i»

^5 462] THE STATES. 953

somewhat anomalous ; it can only be accounted for by the fact that it took the place of
clause 15 of Ch. V. in the Draft Bill of 1891, which declared that a State should not
prohibit the free exercise of any religion. How such a clause crept into the Bill of 1891
it is diflBcult to conjecture. It was rejected without hesitation by the Ck)nvention of
1898, which saw no reason or necessity for interfering with the States in the free and
unfettered exercise of their power over religion.

Whilst the Constitution forbids the Federal Parliament to interfere with the free
exercise of religion, it does not make any provision for protecting the citizens of the
States in their religious worship or religious liberties ; this is left entirely to the State
Constitutions and laws, and there is no inhibition in regard to the subject imposed upon
the States. (Permoli v. First Municipality, 3 How. 589 ; Ex parte Garland, 4 Wall. .398.
Baker, Annot. Const, p. 179.)

Bigamy and polygamj' are crimes by the laws of all civilized and Christian countries,
and this section cannot be invoked as a protection against legislation for their punishment.
(Rej-nolds r. United States, 98 U.S. 145 ; Davis r. Beason, 133 U.S. 333. Id.)

" In the great case of Rejiiolds v. United States, the constitutional immmiity of the
individual in respect to the freedom of religion and worship was fixed and defined. The
court declared that by this constitutional restriction Congress is deprived of legislative
power over opinion merely, but is left free to reach actions which it may regartl as
violations of social duties or as subversive of good order. The free exercise of religion
secured by the Constitution to the individual against the power of the government is,
therefore, confined to the realm of purely spiritual worship; i.e., to relations between
the indi^^dual and an extra-mundane being. So soon as religion seeks to regulate
relations between two or more individuals, it becomes subject to the powers of the
government and to the supremacy of the law; i.e., the individual has in this case no
constitutional immunity against goveramental interference." (Burgess, Political Sc. I.
p. 194.)

An appropriation of money to a hospital conducted bj' a Roman Catholic sister-
hood is not a law respecting an establishment of religion. (Bradfield v. Roberts, 175
U.S. 291.)

Rights of residents in Stat«s.

117. A subject of the Queen*^, resident in any State*^*,
shall not be subject in any other State to any disability or
discrimination*^ which would not be equally applicable to him
if he were a subject of the Queen resident in such other
State.

United States. — The citizens of each State shall be entitled to all privileges and immunities
of citizens in the several States.— Const., Art. IV., sec. 2.

No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States ; nor shall any State .... deny to any persons within
its jurisdiction the equal protection of its laws. — Fourteenth Amendment, sec. 1.

Historical Note. — Clause 17, Chap. V., of the Commonwealth Bill of 1891
Mas : —

" A State shall not make or enforce any law abridging any privilege or immunity of
citizens of other States of the Commonwealth, nor shall a State deny to any person,
within its jurisdiction, the equal protection of the laws."

At the Adelaide session, 1897, this was adopted verbatim. At the Melbourne
session, it was proposed, on the suggestion of the Legislative Assembly of New South
Wales and the Legislative Coujicil of Tasmania, to omit the first portion. No one wa?
able to suggest a privilege or immunity of a citizen of one State which could be abridged
by a law of another State, and it was pointed out that there was no definition of citizen-
ship. Mr. Barton and Mr. Wise wished to give the citizens of each State the privileges
and immunities of citizens of the other State ; Mr. Reid and Mr. Symon said that this
would be an interference with the independence of States, and that the Convention was
only concerned with protecting the federal citizenship. Mr. Wise, as a teat question.

954 COMxMENTARIES ON THE CONSTITUTION. [Sec. 117.

moved the first few words of an amendment suggested by the House of Assembly in
Tasmania, based on the fourteentii amendment of the American Constitution, and
declaring that the citizens of each State should be citizens of the Commonwearth, and
entitled to all the privileges and immunities of citizens of the Commonwealth in the
several States. After debate, this was negatived by 24 votes to 17 ; and the words
dealing with privileges and immunities were then struck out. An amendment V)y Mr.
O'Connor, to add "deprive any person of life, liberty, or property without due process
of law," was negatived by 23 votes to 19. An amendment by Mr. Glynn, to add "deny
to the citizens of other States the privileges and immunities of its own citizens," was
also negatived, and the whole clause was struck out. (Conv. Deb., Melb., pp. 664-91.)
At a later stage Dr. Quick moved to insert in the " powers of Parliament" clause a new
sub-clause— " Commonwealth citizenship." The importance of the question was
recognized; but there were three different opinions expressed: — (1) That the Parlia-
ment should have power to deal with the question ; (2) that citizenship ought to be
defined in the Constitution itself ; (3) that the rights of citizenship were already secured
in the Constitution, and that citizenship itself had never been defined in Great Britain,
and was better not defined. The sub-clause was negatived by 21 votes to 15. (Conv.
Deb , Melb., pp. 1750-68.) On the reconsideration of clauses, Mr. Symon moved, in
place of the clause struck out, to insert : — " The citizens of each State shall be entitled
to all privileges and immunities of citizens in the several States." Dr. Quick moved as
an amendment to insert a definition of Commonwealth citizenship: — " All persons
resident within the Commonwealth, being natural-born or naturalized subjects of the
Queen, and not under any disability imposed by the Parliament, shall be citizens of the
Commonwealth." This was thought too wide, and opinions were expressed that the
better plan would be to empower the Parliament to deal with the question. Mr.
O'Connor then moved to insert : — " Every subject of the Queen, resident in any State
or part of the Commonwealth, shall be entitled in any other State or part of the Com-
monwealth to all the privileges and immunities to which he would be entitled if a
subject of the Queen resident in that latter State or part of the Commonwealth." This
was objected to as being too wide, and making residence in one State equivalent to
another, for all purp6ses. It was suggested that the clause should be put negatively,
instead of affirmatively, and Mr. O'Connor then proposed it as follows :— "No subject
of the Queen, resident in any State, shall be subject in any other State to any disability
or discrimination not equally applicable to the subjects of the Queen in such other
State." This was agreed to. [Id. pp. 1780-1802.) After the second report Mr.
Deakin moved to substitute "such" for "the" before " subjects," in order to indicate
to the Drafting Committee that State rights of defining citizenship were not interfered
with. This was agreed to. Drafting amendments were made after the fourth report.

§ 463. "A Subject of the Queen."

The clause of the Bill of 1891, cited above, provided that a State should not make
or enforce any law abridging any privilege or immunity of citizens of other States, nor
deny to any person, within its jurisdiction, the equal protection of the laws. The
framers of that clause did not define State citizenship, as distinguished from municipal
citizenship. The term citizen was a novel one in the connection in which it was used.
The clause was constructed out of pre-existing materials to be foimd in two clauses in the
Constitution of the United States, viz., (I) "The citizens of each State shall be
entitled to all privileges and immunities of citizens in the several States." (Art. IV.
sec. 2.) (2) "Nor shall any State . . deny to any person within its jurisdiction the
equal protection of the laws." (Fourteenth Amendment, sec. 1.)

Referring to the importance of the first of these provisions. Von Hoist says : — " To
it is chiefly due the fact that, step by step with the progressive development of the
United States, the practical nationalization of the people proceeds." (Const. Law, p.
:247.) The marginal note to the clause of the Draft Bill referred to reads:— "And

^^463.] THE STATES. 955

protection of citizens of the Commonwealth ; *' that note is not •.varranted by the clause
itself, which did not mention a citizenship of the Commonwealth, but only protected the
privileges and immunities of citizens of States.

Sec. 117 of the present Constitution represents the modest outcome of an attempt on
the part of the Convention of 1898 to improve the work of 1891, and to establish a
status capable of being designated "Federal citizenship." It was suggested that in a
federal Commonwealth, such as was being called into existence, there should be a full-
bloomed national citizenship above and bej'ond and immeasurably superior to State
citizenship. A person might be a domiciled resident of a State and an elector for a
Statfe, but at the same time he would occupy a broader and more dignified relation-
ship in his membership of the great federated community, of which the States \vere
separate parts and entities ; and that relationship ought to be expres-sly defined. These
contentions, apparently logical, were not sustained. Meml>ership of the federal
Commonwealth may, as a legal relation, be deduced from the Constitution, but it is not
expressed there in the concrete form which the advocates of the foregoing views
proposed.

According to the root meaning of the word, as well as its original use, a citizen was
a member of a city. The political life of ancient Greece knew nothing higher or more
developed than a city commonwealth, which occasionally combined with other city
commonwealths in a kind of Federal Union. The independent self-ruling city was the
political unit and the political ideal. A citizen was a member of a city state. The city
was, to the Greek, his all in all ; he was above all things a citizen. His political career
and horizon were restricted to a city community. (Freeman's Greater Greece and
Greater Britain, p. 18.) The Greek felt the tie of membership of such a community",
with all the duties which sprang from membership. He owed faith and loyalty to his
city — loyalty in its true and ancient sense of obedience to the law. The tie was local ; the
duty was local ; of a tie of personal allegiance, binding and subjecting him to a personal
superior — of lojaltj- in that sense the old Greek, the Phcenician never had any thought or
experience (»d. pp. 19-20.)

In the Roman Republic the term " civitas^' expressed the bundle of rights and
obligations connoted by citizenship ; the conceptions involved in the Roman civitas
implied citizenship in an enlarged sense, as denotmg not the membership of a city state, as
known to the Greeks, but the membership of a complex and highly organized political
community which, beginning in the city of the Seven Hills, expanded into a national
republic, which united all Italy and then all the known world into oue Empire.
According to Roman law men were originally divided into citizens (cifes) and aliens
(pengrini). The rights of citizens fell into two branches, political and civil. Political
rights were those relating to the electoral and legislative powers {jus suffragii) and
capacity for office (jiui honorum) ; civil rights related to property {commercium) or to
marriage (c(ynnubmm). Aliens were deprived of political rights. They were also refused
proprietary and family rights, except to a limited extent. (Poste's Gains, p. 176.)

In the middle ages, during which the monarchies of modem times grew and became
organized, personal allegiance or subjection became the tie which bound the people
together, causing them to rally round and acknowledge a leader, Mho in return for
allegiance and service afforded them his protection. Allegiance and subjection were
then the test of membei-ship of a political community. The membere of such a
community owing personal duty to a single sovereign were called "subjects." That
relationship was one that could not be acquired or lost without the permission of the
personal sovereign.

" By the English common law, founded on the principle of feudal ligeance and
homage, none were admissible as natural-born subjects, if they were not born in a place
actually possessed at the time of their birth, either by the king himself or by some
prince doing homage to him for it ; except, first, the children of any subjects born
beyond sea who at the birth of those children should be in the service of the Crown ;
secondly, the sovereign's children born during the royalty of their parents ; and, thirdly.

956 COMMENTARIES ON THE CONSTITUTION [Seo. 117.

the heir of the Crown wherever born." (Report of the Natm-alization Committee,
Parti. 1869.)

There is thus a fundamental distinction between a "citizen" as understood in
ancient Greece, in ancient Rome, and in modern republics, and a "subject" as under-
stood at common law. (See Note, " A Subject or a Citizen," § 144, .nipra.)

The framers of the Constitution of the United States had no difficulty in the
selection of a word to denote membership of the nation which they helped to organize.
The people of the United States, having successfully rebelled against George III., ceased
to be subjects of a monarch ; they only recognized the obligation of loyalty to their
country, to their Constitution, and to their political institutions. Hence thej' naturally
reverted to the wider conception of citizen, as known to the Roman law, in order to
express the idea of membership of the new federal community ; they also used the same
term to express the idea of membership of the minor groups, the States, within the
federal community.

The original Constitution, in its sections relating to the organs of government,
provided that no person should be qualified to be elected President or member of
Congress unless he was "a citizen of the United States" of so many years standing;
these clauses clearly contemplated and recognized, but did not define, a federal citizen-
ship. Then Art. IV. s. 2 provided that the citizens of each State should be entitled to
the privileges and immunities of citizens of the several States This clause recognized
a State citizenship distinct from and independent of a Federal citizenship, and from this
State citizenship certain important results of advantage to citizens were intended to flow.
From these provisions there was deduced the idea, so commonly met with in federal
literature, that in a federation there is a dual citizenship as well as a dual system of
government. The Constitutional development and formulation of a Federal citizenship
was completed by the famous Fourteenth Amendment, passed after the Civil War to
establish the equality and freedom of the negro race : —

" All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States ; nor shall any State deprive any person of life, liberty, or
property, without due process of law ; nor deny to any person within its jurisdiction
the equal protection of the laws."

Dr. Burgess has pointed out that before the adoption of that amendment the
Constitution contained no definition of citizenship, either of the United States or of a
State. It referred to a citizenship of the United States as a qualification for member-
ship of Congress and for the Presidential ofiice, but it did not declare what should
constitute such citizenship. The leaders of the State-rights party held that citizenship
of the United States was but the consequence of citizenship in some State. The
Supreme Court itself indicated that it was inclining to the same view in the
decision that a man of African descent could not be a citizen of a State or of the
United States ; i.e., that the United States Government had not the power to make him
so. (Dred Scott );. Sandford, 19 How. 393; Burgess, Political Sc. I. p. 21fl.)

" This amendment, therefore, reverses the previously-established principle.
According to it. citizenship is primarily of the United States ; and secondarily and
consequently, of the locality in which the citizen of the United States may reside.
Citizenship, both of the United States and of the States, is thus conferred by the
Constitution of the United States and the laws of Congress made in accordance there-
with. The States can neither confer nor withhold citizenship of the United States. A
citizen of the United States is now, ip-tojure, a citizen of the State in which he may fix
his residence ; and if any State should undertake to defeat the spirit of this provision
by the enactment of hostile laws in regard to the gaining of residence within its limits,
any individual suffering injury from the same may invoke the interpretation of the term
' residence ' by the United States judiciary, and the aid of the general government in
the protection of his liberty under that interpretation. There is nothing in this
provision, indeed, which would prevent a State from permitting an alien to exercise the
privileges of a citizen within the State so far as that particular State is concerned. The
provision was meant to enlarge the enjoyment of these privileges, not to contract them.

§46:?.] THE STATES. 957

It is easy to see, however, that a State may abuse this power to the detriment of the
whole people of the United States. For example, a State might permit aliens to hold
real estate in such quantities and under such tenures as to introduce a very disturbing
element into our general system of ownership of land. I will say nothing at this point
concerning the possible, nay, actual, abuse of this power by the States in permitting
aliens to exercise the suflFrage, since the suffrage cannot be classed among the civil or
private rights." (Burgess, Political Sc. I. p. 219.)

In framing the Constitution of a Federal Commonwealth under the Crown, and in
determining the status, conditions, and incidents of membership thereof, several
technical difficulties were encountered, such as, what designation should be assigned and
what privileges and immunities could be annexed to that membership ?

In ^^ew of the historical associations and the peculiar significance of the terms
" citizens " and " subjects,'' one being used to express the membership of a republican
community, and the other that of a community acknowledging an allegiance to a personal
sovereign, it was obvious that there might have been an impropriety in discarding the
time-honoured word "subject " and in adopting a nomenclature unobjectionable in itself
but associated with a diflferent system of political government.

Whatever be the reason, rightly or wrongly, the term " citizen " has been rejected
and does not appear in the Constitution. In several notable passages in the instrument,
the phrase, *' the people of the Commonwealth,' is used to denote the personal units
composing the national elements of the Commonwealth. The members of the House of
Representatives are chosen by "the people of the Commonwealth" ^sec 24). In
reckoning the number of " the people of the Commonwealth," persons belonging to
disqualified races are not to be counted (sec. 25). In reckoning the numbers of "the
people of the Commonwealth or of a State," aboriginal natives are not to be counted
(sec. 127- ) This is the nearest approach in the Constitution to a designation equivalent
to citizenship, and intended to indicate membership of the Federal community. When
it is sought to express a narrower political relationship than that of the Commonwealth,
the phrase " the people of the States " is used. The senators for each State are chosen
by "the people of the State" (sec. 7). The number of members of the House of
Representatives in each State is determined by dividing " the people of each State " by
the quota (sec. 24— ii.). Where it is sought to express a political relationship more
comprehensive than either that of the State or that of- the Conmionwealth, the term
used is one denoting British nationality — " a subject of the Queen." Thus the different
gradations of political status recognized by the Constitution are : —

Stibjects of the Queen :

People of the Commonwealth :

People of a State.

In their political relations, as subjects of the Queen, the people are considered as
inhabitants and individual units of the Empire over which Her Majesty presides. That
is the widest political relationship known to British law. "I am a British subject," is equal
in practical and Imperial significance to the proud boast of the Roman "crii's Romanus
sum.'' Subjects of the Queen, or British subjects, have rights, privileges, and immunities
secured to them by Imperial law, which they may assert and enjoy without hindrance in
any part of the Queen's dominions, and in British ships on the high seas. In a modified
degree some of those rights, privileges, and immunities, founded on treaty, may be
enforced in foreign countries. The whole naval and military strength of the Empire,
and the assistance of its highest courts of justice, may be invoked for the vindication of
those rights, privileges, and immunities.

The people of the Commonwealth constitute only one group of the subjects of the
Queen. The people of the Commonwealth are those people who are permanently
domiciled within the territorial limits of the Commonwealth. Territorially such people
may be called Australians, but constitutionally they are described as British subjects or
subjects of the Queen. They do not lose their character as people of the Commonwealth
by migrating from one State to another, any more than they lose their national character

958 COMMENTARIES ON THE CONSTITUTION. [Sec. 117.

by migrating from one part of the Empire to another, or sojourning in foreign countries.
Their privileges and immunities as people of the Commonwealth are secured and
guaranteed to them, without regard to their residence in a particular State.

The people of a State compose a group of the people of the Commonwealth. Their
privileges and immunities, as members of a State community, depend on their residence
within the limits of the State, and their compliance with the requirements of State laws.
Within each State there are minor municipal groups designated citizens.

In this connection it is interesting to notice how the need of some word to express
colonial citizenship has evolved the phrase "subject of a colony," first made use of by
Sir G. J. Turner, L.J., in Low v. Routledge, L.R. 1 Ch. 42, 1865. Referring to this
expression, a writer in 31 Canad. L.J. 37, says : " There is no such thing as a Canadian,
Australian, or Indian subject." Mr. Lefroy, commenting on this observation, admits
that in an international sense no doubt this is so ; but argues that the authorities on the
extra-territorial application of colonial laws show that " there is a sense in which it is
proper to speak of a man as a subject of a particular colony, and that legal distinctions
hinge upon his position as such." (Lefroy, Legisl. Power in Canada, p. 329, n. )

Assuming that the establishment of a distinct membership of the Federal community
may be inferred from those passages in the Constitution which allude to " the people of
the Commonwealth," we now proceed to consider what incidents are annexed to such a
status, and how they can be enforced and how differentiated from incidents annexed to
the other condition. State membership, which may be inferred from the use of the
expression, " the people of the State."

Federal Pkivileges and Immunities. — In the Constitution of the Commonwealth
there is no special section corresponding to the Fourteenth Amendment of the American
Constitution, declaring who are "the people of the Commonwealth," affirming their
privileges and immunities, and placing them bej'ond the power of the States to abridge.
Since the decision of the Supreme Court of the United States in the celebrated Slaughter-
house Cases (16 Wall. 36), it has been doubted, by competent American jurists, wiiether
the Fourteenth Amendment was really necessarj' in order to place Federal privileges and
imnmnities beyond State control. The mere fact that the Constitution has created
privileges and immunities is, it is argued, of itself sufficient to place them beyond the
reach of unfriendl3^ State legislation. The State laws can only operate within the sphere
of power assigned to the States. The same reasoning applies to the Constitution of the
Commonwealth, and accounts for the absence of any affirmation similar to that of the
Fourteenth Amendment. The privileges and immunities of the people of the Common-
wealth exist within the sphere of Federal power, and by the Constitution itself the
Federal laws are paramount and supreme ; they cannot be impaired or abridged by
State legislation. (Cooley's Principles of Const. Law, 274.)

Although there is no special section affirming the existence of Federal privileges and
immunities, such privileges and immunities may be gathered from the express provisions
or necessary implications of the Constitution. Among the most prominent Federal
privileges may be mentioned those relating to the suffrage — the right to vote at elections
for both houses of the Federal Parliament (sec. 41) ; the right to participate, on terms of
erpiality, in trade and commerce between the States and with other countries (sees. 51 — i.
and 99) ; the right to have the benefit of the postal, telegraphic, and telephonic services
(sec. 51 — v.); the right to share the protection of the naval and military forces of the
Commonwealth (sec. 51 — vi.) ; the right to use the navigable waters of the Commonwealth
for the purposes of trade and commerce (sec. 98) ; the right to pass from one State into
another and to hold intercourse with foreign countries (sees. 51 — i. and 92). To be
allowed to visit the seat of Government, to gain access to Federal territories, to petition
the Federal authorities, to examine the public records of the Federal courts and insti-
tutions, are rights which, if not expressly granted, may be inferred from the Constitution,
and which could not be taken away or abridged by tiie States any more than those
directly and clearly conveyed. (Story, Coram. § 1937; Crandall v. Nevada, 6 Wall. 36. >

§§463-463a.] THE STATES. 959

Immunities are generally the corollaries of privileges. Where a priWlege is grante<l
there must be an exemption from interference or obstruction iu the enjoyment of the
privilege. Consequenth', a State could not pass laws which would operate as burdens
and impositions and prevent the free exercise of Federal privileges. Thus a State could
not require an importer of foreign merchandise to pay a tax for a license to sell such
goods. (Brown v. Maryland, 12 Wheat. 419.) Free intercourse between the States
being established bj- the Constitution, a State could not impose a tax on travellers
entering or leaving the State. (Crandall v. Nevada, 6 Wall. 3.5. ) The people of the
Commonwealth having a right to sue in the Federal courts in the prosecution of causes
specified by the Constitution, a State could not obstruct the citizens of other States in
suing its own citizens in the Federal courts. (Insurance Co. r. Morse, 20 Wall. 445.) A
Sta.te could not interfere with the freedom of inter-state trade by demanding license fees
•from the vendors of goods imported from other States (sec. 92).

ExFORCEMEXT OF Fedekal PRI^^LE^;ES AND IMMUNITIES. — As there is no necessity
for specially declaring that the prixnleges and immunities of the people of the Common-
wealth may not be abridged by the States, so there is no necessity for specifying any
procedure by which they may be enforced. They may be described as self-executing.
Every privilege or immunity conferred by the Constitution implies a prohibition against
anything inconsistent with the free exercise or enjoyment thereof. Any law passed by a
State, in violation of any constitutional privilege or immunitj-, would be null and void ;
the courts would not enforce it.

§ 463a. '* Resident in Any State."

We have explained generally the privileges and immunities of the people belonging
to the Commonwealth, and accounted for the absence from the Constitution of any
express declaration or reference to such privileges or immunities ; we now come to the
consideration of those pri\ileges and immunities created by and dependent upon State
laws which are the only ones coming within the purview of sec. 117- This section as
drawn prohibits the imposition of disabilities and discriminations by a State against the
people of another State. It would be impossible, however, to grasp the significance of
this prohibition without some consideration of the privileges and immunities with respect
to which such disabilities and discriminations may be enacted.

State Privileges .and Immtnities. — In the exercise of its reserved powers each
State will have exclusive authority to legislate concerning the rights, priWleges, im-
munities, and obligations of the people. In fact the whole domain of ci%nl liberty,
except that assigned to the Federal authority, is subject to the jurisdiction of the State.
A complete enumeration of the matters belonging to that domain, and dependent upon
State law, would be too complicated and too length}- to present, but a fair summary has
been given by an eminent American Judge : —

" The privileges and immunities of State citizenship are all comprehended under the
following general heads : protection by the Government, the enjoyment of life and
liberty, with the right to acquire and possess property of every kind, and to pursue and
obtain happiness and safety, subject nevertheless to such restraints as the Government
may justly prescribe for the general good of the whole. The right of a citizen of one
State to pass through or to reside in any other State, for purposes of trade, agriculture,
professional pursuits, or otherwise, to claim the benefit ot the writ of habeas corpus, to
institute and maintain actions of every kind in the courts of the State : to take, hold,
and dispose of property, either real or personal, and an exemption from higher taxes or
impositions than are paid by the citizens of other States, may be mentioned as some of
the principal privileges and immunities of citizens which are clearly embraced by the
general description of privileges deemed to be fundamental. (Per Washington, J., in
Corfield v. Coryell, 4 Wash. C.C. 380.)

" Other Judges, while appro^•ing of this general enumeration, have been careful to
say that they deem it safer and more in accordance with the duty of a judicial tribunal
to leave the meaning to be determined in each case upon a view of the particular rights
asserted therein. And especially is this true when we are dealing with so broad a
provision, involving matters not only of great delicacj' and importance, but which are

960 COMMENTARIES ON THE CONSTITUTION. [Sec. 117.

of such a character that any merely abstract definition could scarcely be correct ; and a
failure to make it so would certainly produce mischief." (Cooley's Const. Law, p. 207.)

Such being some of the fundamental privileges and immunities within the power of
a State to confer, we are now in a position to consider the nature of the limitations
imposed by sec. 117. This section provides that a subject of the Queen resident in one
State shall not be subject in any other State to any disability or discrimination which
would not be equally applicable to him if he were a subject of the Queen resident in
such other State. Its object is to establish a sort of inter-state reciprocity in the enjoy-
ment of privileges and immunities created by and dependent upon State laws. This
reciprocity is secured by the inhibition that a qualified resident in one State shall not,
in his dealing or connection with another State, be liable to any disability or discrimina-
tion which would not be applicable to him if he were a qualified resident in that other
State.

Residence is an elastic word which may be modified by the context. {Exp. BreuU,
re Bowie [1888], 16 Ch. D. 484 ; Lewis v. Graham [1888], 20 Q.B. D. 780.) Its ordinary
meaning is the place where a person lives ; that is, where he usually eats, drinks, and
sleeps, or where his family or servants eat, drink, and sleep. (Per Bayley, J., in Rex.
V. North Curry [1825], 4 Barn, and Cress. 959 ; and see Notes, pp. 477, 776, supra.) In
this section, "a resident in any State" means a person who permanently lives in a State ;
one who is not a mere visitor or sojourner ; one who by his continued residence in a
State has become identified with it and is regarded as one of its people.

The privileges and immunities contemplated by this section are those which belong
to resident subjects of the Queen in a State. The States are not forbidden to impose
disabilities and make discriminations in laws relating to aliens. It is assumed that tlie
resident subjects of the Queen will be the most favoured people and the special object
of State consideration and solicitude. Hence the Constitution interposes and as a matter
of national policy seeks to secure equality of treatment, in all the States, for subjects of
the Queen resident in any State of the Commonwealth.

§ 464. " Disability or Discrimination."

No privileges or immimities are secured against disability and discrimination except
those annexed by the laws of a State to the combined conditions of State residence and
British subjectship. A State is not forbidden to enact that certain privileges and
immunities may flow from a contractual relation. Thus a State law prohibiting, in
certain districts, the sale of goods other than the agricultural products and articles
manufactured in the State, by persons not residents of the State, until license therefor
has been obtained, is unconstitutional. (Ward v. Maryland, 12 Wall. 418.) On the
other hand, in contrast to this case, privileges and immimities attached by law to
contracts by reason of the place where such contracts are made or executed are not
within the mischief intended to be rectified by this section. It would not be a disability
or discrimination prohibited by this section, for a State to deny to a widow, whose
marriage was not contracted within the State or executed there by a matrimonial
domicile, the same rights of property in the estate of a deceased husband as is given to
a widow whose marriage was there contracted, or where the spouses live in the State.
(Conner v. Elliott, 18 How. 591.) Other American ca.ses may be cited in illustration of
the operation of this section.

A State statute which, in effect, provides that where a defendant is out of the State
the statute of limitations shall not run against the plaintiff if the latter resides in the
State, but shall if he resides out of the state, is not repugnant to the " privilege and
immunity" clause (supra). (Ryan v. Carter, 9.3 U.S. 78 ; Baker, Annot. Const, p. 158.)

A law of Iowa, which provides that a person having in his possession " Texas cattle "
which have not been wintered north of a certain line shall be liable for all damages
caused by allowing such cattle to run at large and thereby spread the Texas cattle fever,
is not a denial to the citizens of other States of the rights, privileges and immunities
accorded to citizens of Iowa. ^Kimmish v. Ball, 129 U.S. 217. Id.)

^§464-465.] THE STATES. 961

The "privilege and immunity" clause does not control the power of the State
Governments over the rights of their own citizens. Its sole purpose is to declare to the
several States that whatever those rights are, as yon grant or establish them to your own
citizens, or as j'ou limit or qualify, or impose restrictions on their exercise, the same,
neither more nor less, shall be the measure of the rights of citizens of other States within
your jurisdiction. (Slaughter-House Cases, 16 Wall. 36. Id.)

This section, like the Fourteenth Amendment, is directed against State action. Its
object is to place the citizens of each State on the same footing with citizens of other
States, and inhibit discriminating legislation against them by other States. (United
States r. Harris, 106 U.S. 629. Id.)

Each State owns the tide-waters and beds of all tide waters within its jurisdiction ; a
right of fishery is a property right, and not a mere privilege or immunity of citizenship.
Therefore a State may grant to its own citizens the exclusive privilege of using the lands
covered by water on its borders for the purpose of maintaining oyster-beds, and may
with penalties prohibit such use by citizens of other States. (McCready v. Virginia, 94
U.S. 391. Id. 157.)

It seems doubtful whether the rule affirmed in McCready v. Virginia (sxtjn-a) would
be followed in a legal construction of sec. 117. To grant subjects of the Queen, in a
State, the exclusive right to plant oysters in soil covered by tidal waters within a State
and to forbid the subjects of the Queen resident in another State to do so, would look
uncommonly like a discrimination in favour of the people of one State, and a disability on
the people, subjects of the Queen, of another State ; as such it would be within the
mischief intended to be suppressed by the Constitution.

CoRPORATioxs. — It has been held in the United States that a corporation created by
a State is not a " citizen " of the State, so as to be entitled to the privileges and
immunities of citizens in the several States. (Paul t: Virginia, 8 Wall. 168 ; Blake v.
M'Clung, 172 U.S. 239.) It would seem ec^ually clear that a corporation cannot be
a " subject of the Queen " within the meaning of this section. Accordingly a State may
discriminate between its own corporations and those of another State —subject of course
to the limitations imposed by other sections of the Constitution. (Ducat v. Chicago, 10
Wall. 410.)

Recognition of laws, &c. , of States.

118. Full faith and credit**^ shall be given, throucrhout
the Commonwealth, to the laws, the public Acts and records,
and the judicial proceedings of every State.

United Statis. — Full faith and credit shall be given in each State to the public acts, records,
and judicial proceeding's of every other State. And the Congress may, by general la^^-s,
prescribe the manner in which such act*, records, and proceedings shall i)€ proved, and
the effect thereof. — Const., Art. iv., sec. 1.

Historical Note. — In the Commonwealth Bill of 1891 were provisions identical
with this section and with sub-sec. xxv. of sec. 51 — provisions which together make up
the American section quoted above. (Conv. Deb., Syd , 1891, p. 883.) At the Adelaide
session in 1897, these provisions were adopted verbatim. At the Melbourne session a
suggestion by the Legislative Council of New South Wales to omit (in sec. 51)
*' throughout the Commonwealth " was negatived.

§ 465. "Full Faith and Credit."

Section 118 contains a constitutional declaration in favour of inter-state official
and judicial reciprocity, which the Federal Parliament and the States may
assist to effectuate, but which they cannot prejudice or render nugatory ; the Federal
Parliament being enabled to carry it into execution by sec. 51 — xxiv. and xxv., and the
States in the exercise of their reserved powers. Subjects of the Queen, residents in one
State, may have rights of property and personal privileges which they wish to assert in
61

962 COMMENTARIES ON THE CONSTITUTION. [Sec. 118.

other States where they do not reside. They may desire to take proceedings in the
courts of another State, in order to assert their rights and privileges and to protect their
interests. In such proceedings it may be necessary to prove the statutes, records, and
judicial proceedings of their own State, or to give evidence of muniments of title existing
in their own State. By the rules of international and inter-state comity, as well as at
common law, there are certain recognized methods of proof and modes of enforcing such
rights and privileges. These rules, however, may be altered or abolished bj- State
legislation. It is conceivable that in times of antagonism and contention between States,
laws might be passed in one State intended to defeat or delay the residents of another
State in the prosecution of legal rights and remedies against residents in that State.
This policy, once resorted to, would lead to reprisals and retaliations, resulting in
infinite mischief and unwarrantable denial of right. The Constitution has interposed
and converted the rule of comity into a rule of law, in order to promote uniformity of
regulation in such inter-state proceedings as well as to prevent the possibility of resort
to a narrow-minded unfraternal policy.

American Legislation. — In pursuance of power conferred on it by a similar section
in the Constitution, the Congress of the United States, in 1790, passed a law which
declared that the Acts of the legislatures of the several States should be authenticated
by the seals of their respective States, and that the records and judicial proceedings of
the courts of any State should be proved or admitted in any other court within the
United States by the attestation of the clerk and the seal of the court annexed, together
with a certificate of the judge that the said attestation was in due form ; and that records
so authenticated should have the same faith and credit given to them in every court
within the United States as they had in the courts of that State. (U.S. Stat, at Large i..
122 ; Rev. Stat. 2nd ed. §§ 905-6 ; Hanley v. Donoghue, 116 U.S. 1 ; Cole v.
Cunningham, 133 U.S. 107 ; cited Rorer, Inter-State Law, p. 154.)

By a subsequent Act of Congress, passed in 1804, similar provisions as to faith and
credit were applied to all records and exemplications of office books kept in any public
oflBce of any State, not belonging to a court. (U.S. Stat, at Large ii. 298; Rev. Stat.
2nd ed. § 906 ; Rorer, Inter-State Law, p. 155.)

Application to State Courts. — "The foregoing constitutional and statutory
provisions of the United States apply only to the courts of the States and Territories
of the United States. They have no reference whatever to the coiirts, records,
documents, or acts of the United States as evidence in the State courts, or to those of
the State courts as evidence in the National courts ; in these cases the ordinary
certificate of the clerk and seal of the court, in such manner or form as renders them
admissible in the courts of the same State, or in the Federal courts, as the case may be,
renders these documents, records, and acts mutually admissible as between the State
and Federal courts, when otherwise proper evidence. But notwithstanding those
National provisions are not intended to apply to the United States courts, yet the
records of those courts are admissible in other courts, though certified in accordance
with said act of Congress. The fact that such authentication more than fulfils the
requirement of the law as to admissibility will not be ground of exclusion. " (Rorer on
Inter-State Law, p. 156.)

Federal Courts and State Courts. — "The State and National courts, though
emanations of difi'erent sovereignties, are in no wise foreign tribiuials to each other, nor
are the National courts of one circuit or district such in reference to those of other
circuits or districts, but are domestic tribunals, whose seals are recognized as matter of
course. But such courts, both National and State, are courts of different sovereignties;
and the National Courts are only required to give judgments of State courts such
authority as they are entitled to in the courts of the State wherein they are rendered."
(Rorer on Inter-State Law, p. 156.)

Proof of Statutes. — "The certificate and seal of State of the genuineness of statute
laws need no other proof of their authenticity, or of the official character of the person
certifying as Secretary of State, and if there be any interlineations they are presumed to
have been made rightfullj' ; and so it is settled that State laws need not be proved in
the courts of the United States." (Rorer on Inter-State Law, p. 159.)

General Principles. — " The full faith and credit to which the public acts, records,
and proceedings are entitled in other States is the same faith and credit to M'hich they

§465.] THE STATES. 963

are entitled in the State whose acts, records, and judicial proceedings they are.
(Armstrong v. Carson, 2 Dall. 302.) When, therefore, suit is brought in one State upon
a judgment rendered by a court of another State, and it appears that by the law of the
lasi-mentioned State it is conclusive upon the defendant, it must be held equally con-
clusive in the court in which suit upon it is brought. (Mills v. Duryee, 7 Cranch
481.) Whatever pleas would be good to it in the State where it was pronounced, and
none others, might be pleaded to it in any other court within the United States.
(Hampton v. McConnell, 3 Wheat. 234; Green v. Van Buskirk, 7 Wall. 139.)
Judgments in one State when proved in another diifer from judgments of another
country in this alone, that they are not impeachable for fraud nor open to question upon
the merits. (Hanley r. Donoghue, 116 U.S. 1.) But the judgment can have no greater
or other force abroad than at home, and therefore it is always compet«nt to show that
it is invalid for want of jurisdiction in the court rendering it. (Harris i\ Hardeman, 14
How. 334. ) To preclude inquiry into it in another State, the judgment must not only be
rendered by a court having jurisdiction of the subject-matter and the parties, but, if
the defendant does not appear at the trial, it must be responsive to the pleadings.
(Re^-nolds r. Stockton, 140 U.S. 254.) So anj'thing that goes in release or discharge of
the judgment may be shown. (McElmoyle v. Cohen, 13 Pet. 312 ; D'Arcy r. Ketchum,
11 How. 165.) And the Statute of Limitations of the State where the suit is brought
will be available, if the case comes within it. But it is not competent for any State to
pass an act of limitations which would, in eflfect, nullify judgments rendered in other
States, and allow no remedy upon them whatever. Reasonable opportunity to enforce a
demand must always be afforded." (Cooley's Principles of Const. Law, p. 203.)

" Constiiictive sersnce of process bj' publication or attachment of property is
sufficient to enable the courts of a State to subject property within it to their jurisdiction
in such cases as the statutes of the States may provide therefor ; but such a service
cannot be the foundation of a personal judgment. Process from the tribunals of one
State cannot run into another State and summon parties there domiciled to leave its
territory and respond to proceedings against them. Publication of process or notice
within the State where the tribunal sits cannot create any greater obligation upon the
non-resident to appear. Process sent to him out of the State, and process published
within it, are equally miavailable in proceedings to establish his personal liability. But
in respect to the res, a judgment in rem, rendered with competent jurisdiction, is con-
clusive everywhere." (Id. pp. 204-5.)

"The Act of Congress declaring the effect to be given in any court within the
United States to the records and judicial proceedings of the several States does not
require that they shall have any greater force and efficacy in other courts than in the
courts of the States from which they are taken, but onlj' such faith and credit as by law
or usage they have there. (Robertson v. Pickrell, 1U9 U.S. 608.)" (Rorer on Inter-State
Law, p. 155.)

" This section of the Constitution does not prevent an inquiry into the jurisdiction
of the court in which a judgment is rendered, to pronounce the judgment, nor into the
right of the State to exercise authority over the parties or the subject-matter, nor
whether the judgment is founded in and impeachable for a manifest fraud. The
Constitution did not mean to confer any new power on the States, but simply to regulate
the effect of their acknowledged jurisdiction over persons and things within their
territory. It did not make the judgments of the States domestic judgments to all intents
and purposes, but only gave a general validity, faith and credit to them as evidence.
No execution can be issued upon such judgments without a new suit in the tribunals of
other States, and they enjoy not the right of priority or pri\nlege or lien which they
have in the State where they are pronounced, but that only which the ' lex fori' gives to
them by its own laws, in their character of foreign judgments. (McElmoyle r. Cohen,
13 Pet.'312 ; D'Arcy v. Ketchum, 11 How. 165 ; Thompson v. Whitman, 18 Wall. 457 ;
Pennoyer v. Neff, 95 U.S. 714 ; Wisconsin v. Pelican Ins. Co., 127 U.S. 265 ; Christmas
V. Russell, 5 Wall. 290 ; Story, Constitution, § 1303 et seq., and Story, Conflict of Law,
§ 609.) And other judicial proceedings can rest on no higher ground. (Cole v.
Cunningham, 133 U.S. 107, 112.)" (Id. p. 152.)

The constitutional provision does not prevent enquiry into the jurisdiction of the
court in which the judgment was rendered over subject matter and parties, or into the
facts necessary to give such jurisdiction. (Thormann v. Frame, 176 U.S. 350.)

Federal Power. — The cases cited merely illustrate the law of the United States,
as determined by the Constitution and by Federal legislation thereunder. It must be
remembered that the Parliament of the Commonwealth has large powers of legislation
under sec. 51 — xxiv. and xxv. It can pass laws providing for the service and execution
throughout the Commonwealth of the civil and criminal process and the judgments of

964 COMMENTARIES ON THE CONSTITUTION. [See. 119.

the courts of the States. By the exercise of that power the Federal Parliament may
revolutionize the principles of service of process, referred to in the extract from Cooley
{siipra). The Federal Parliament can likewise pass laws providing for the recognition,
throughout the Commonwealth, of the laws, the public acts and records, and the judicial
proceedings of the States. (As to legislation which may be passed in the exercise ol
these powers, see Notes on sec. 51 — xxiv. and xxv.)

Protection of States from invasion and violence.

119. The Commonwealth shall protect every State
against invasion*^^ and, on the application of the Executive
Government of the State, against domestic violence*^".

United States. — The United States . . . shall protect [every State] against invasion ; and,
on application of the Lesislature, or of the Executive (when the Legislature cannot be
convened) against domestic violence. — Art. IV., sec. 4.

Historical Note. — In the Commonwealth Bill of 1891, and in the Adelaide draft of
1897, this clause appeared verbatim. At the Melbourne session, Mr. Gordon moved to
substitute " attack " for " invasion," to make it clear that a naval attack was included.
This was negatived. (Conv. Deb., Melb., pp. 691-2.)

§ 466. "Protect every State against Invasion."

The Commonwealth is required to protect every State against invasion. The courts
have iiiterpreted the phrase, "United States" in a similar section in the American
Constitution, to mean the Federal Government. (Luther v. Borden, 7 How. 1. See
Pomeroy, Const. Law, § 101.) Hence the injunction that " the Commonwealth " shall
protect a State refers to the Federal Government and not the political community of
which that Government is an organ. The power and duty to protect against invasion
may be exercised by the Federal authority on its own motion and according to its own
judgment and discretion, without the necessity of an application from any State
organization within the State.

§ 467. " Domestic Violence."

The Federal Authority is not required or empowered to interfere to protect a State
against domestic violence, except on the application of the Executive Government of the
State. The maintenance of order in a State is primarily the concern of the State, for
which the police powers of the State are ordinarily adequate. But even if the State is
unable to cope with domestic violence, the Federal Government has no right to intervene,
for the protection of the State or its citizens, unless called upon by the State Executive.
If, however, domestic violence within a State is of such a character as to interfere with
the operations of the Federal Government, or with the rights and privileges of federal
citizenship, the Federal Government may clearly, without a summons from tlie State,
interfere to restore order. Thus if a riot in a State interfered with the carriage of the
federal mails, or with inter-state commerce, or with the right of an elector to record his
vote at federal elections, the Federal Government could use all the force at its disposal,
not to protect the State, but to protect itself. Were it otherwise, the Federal Government
would be dependent on the Governments of the States for the effective exercise of its
powers. And not only may the Executive Government interfere to suppress by force a
rebellion which cripples its powers, but the federal courts may interfere in a peaceful
way by issuing an injunction against the offenders, and executing the judgment of the

§§467-468.] THE STATES. 965

Court in the ordinary way. These principles were conclusively settled in the United
States, in 1895, by the case of Re Debs (158 U.S. 564). Debs and others were oflScers of
a trade imion in Illinois, who combined to boycott the cars of the Pullman Palace Car
Company, and proceeded by threats, intimidation, force and violence, to obstruct and
Mreck trains engaged in inter-state commerce, and in carrying the United States Mails.
A Federal Circuit Court in Illinois, on a bill filed by the Pullman Company, granted an
injunction against Debs and his associates. Debs, ha^^ng been attached for disobedience
to the injunction, applied to the Supreme Court of the United States for a writ of habeas
corpus, which was refused on the ground that the Circvut Court had authority to issue
and enforce the injunction.

' ' There is no such impoteucy in the National Government. The entire strength of
the nation may be used to enforce in any part of the land the full and free exercise of all
national powers, and the security of all rights entrusted by the Constitution to its care.
The strong arm of the National Goverximent may be put forth to brush away all obstruc-
tions to the freedom of inter-state commerce, or the transportation of the mails. If the
emergency' arises, the army of the nation, and all its militia, are at the service of the
Nation to compel obedience to its laws. But passing to the second question, is there no
other alternative than the use of force on the part of the executive authorities whenever
obstructions arise to the freedom of inter-stat« commerce or the transportation of the
mails? Is the army the only instrument by which rights of the public can be enforced
and the peace of the nation preserved ? Grant that any public nuisance may be forcibly
abated either at the instance of the authorities, or by any individual suffering private
damage therefrom, the existence of this right of forcible abatement is not inconsistent
with nor does it destroj- the right of appeal in an orderly way to the courts for a
judicial determination, and an exercise of their powers by writ of injunction and
otherwise to accomplish the same result." (Per Brewer, J., ^e Debs, 158 U.S. 582.)

'• We hold it to be an incontrovertible principle, that the government of the United
States may, by means of physical force, exercised through its official agents, execute oh
every foot of American soil the powers and functions that belong to it. This necessarily
involves the power to command obedience to its laws, and hence the power to keep the
peace to that extent." (Per Bradley, J., Exp. Siebold, 100 U.S. 395.)

Custody of offenders against laws of the Commonwealth.

120. Every State shall make provision for the detention
in its prisons of persons accused or convicted of offences
against the laws of the Commonwealth**®, and for the punish-
ment of persons convicted of such offences, and the Parliament
of the Commonwealth mav make laws to jjive effect to this
provision.

Historical Note. —A clause in substantially the same words was in the Common-
wealth Bill of 1891, and was adopted at the Adelaide session, 1897. At the Melbourne
session the clause was verbally amended. (Conv. Deb., Melb., pp. 692-3. ) A verbal
alteration was also made after the fourth report.

§ 468. " Offences Against the Laws of the Commonwealth."

In the exercise of its constitutional powers the Federal Parliament may create
privileges and immunities and impose obligations, and it may declare that any breach
thereof is an offence, punishable by fine or imprisonment. Every violation of public law
may be made an offence. For a definition of offences again>t laws of the Commonwealth,
and a discussion of the question whether there is a common law of the Commonwealth,
see Notes, §§ 326, 341, »upra.

966 COMMENTARIES ON THE CONSTITUTION. [See. 120.

§ 469. "Prisons."

The Federal Government will be able to establish its own prisons and reformatories
for the detention and punishment of prisoners convicted of offences against the law of
the Commonwealth. Until such prisons are established it is the duty of every State to
make provision for the detention and punishment of persons so convicted within its
limits. Warrants of commitment and imprisonment signed by the proper officers of
Federal courts will be as binding on the keepers of State gaols as those issued by the
judges and magistrates of the States. The Federal Authority will presumably compen-
sate the State Authorities for the expense which they may incur in providing the
necessary gaol accommodation and supervision.

NEW STATES. 967

CHAPTER VI.— NEW STATES.

New States may be admitted or established.

121. The Parliament may admit to the Commonwealth
or establish new States*^", and may upon such admission or
establishment make or impose such terms and conditions*^\
including the extent of representation in either House of the
Parliament, as it thinks fit.

United States. — New States may be admitted by the Congress into this Union. — Const. Art.
IV. sec. 3, sub-sec. 1.

Canada. — It shall be lawfnl for the Queen, bj^ and with the advice of Her Majesty's Most
Honourable Privy Council, on addresses from the Houses of the Parliament of Canada, and
from the Houses of the respective Lejfislatures of the Colonies or Provinces of Newfound-
land, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or
any of them, into the Union, and on address from the Houses of the Parliament of Canada
to'admit Rupert's Land and the North Western Territory, or either of them, into the
Union, on such terms and conditions in each case as are in the addresses expressed and as
the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisions
of any Order in Council in that behalf shall have effect as if they had been enacted bj- the
Parliament of the United Kingdom of Great Britain and Iieland. — B.N.A. Act, 1867, sec.
146.

Historical Note. — Chap. VI. of the Commonwealth Bill of 1891 contained the
following clauses : —

(1.) " Any of the existing Colonies of [here name the existing colonies which have not
adopted the Constitution] may upon adopting this Constitution be admitted to the
Commonwealth, and shall thereupon become and be a State of the Commonwealth."

(2.) " The Parliament of the Commonwealth may from time to time establish and
admit to the Commonwealth new States, and may upon such establishment and admission
make and impose such conditions, as to the extent of representation in either House of
the Parliament or otherwise, as it thinks fit."

This would have entitled any of the existing Australian colonies to be admitted to
the Commonwealth at any time, upon equal terms with the Original States, whereas
other new States could onlj' be admitted by the Parliament of the Commonwealth, on
such terms as it thought fit to impose. In Committee, Colonel W. CoUard Smith
suggested that exi.sting colonies which did not come in at first should only be permitted
to come in afterwards on such terms as the Parliament might determine. Sir Samuel
Griffith thought it better to leave the clause as it was, and no amendment was moved.
(Conv. Deb., Syd. [1891], p. 883.)

At the Adelaide session both these clauses were included in the first draft. In
Committee, however, it was pointed out that the pro\'ision as to existing colonies was
altogether one-sided ; it bound the outstanding colonies to nothing, whilst it bound the
Commonwealth to admit them unconditionally at any time ; and this offered an induce-
ment to ' ' languid " colonies to ' ' lounge into the Federation " at their own convenience.
It was suggested that either the Commonwealth should be empowered to impose terms,
or that at least the consent of the Commonwealth should be required to the admission of
a new State. On the other hand, it was argued that the clause as it stood would smooth
the way for existing colonies, which might not be ready to join at present ; and that to
impose terms and conditions might discourage them. Eventually the first clause was
struck out, and the second clause was amended to read as follows : —

" The Parliament may from time to time admit to the Commonwealth any of the
existing colonies of [here name thtt colonies which have not adopted the Constitution] and

968 COMMENTARIES ON THE CONSTITUTION. [Sec. 121.

may from time to time establish new States, and may upon such admission or establish-
ment impose such terms and conditions, including the extent of representation in either
House of the Parliament, as it thinks fit." (Conv. Deb., Adel., pp. 1007-12.)

During the statxitory adjournment, various suggestions were made by the
Legislatures. Both Houses in Western Australia and Tasmania suggested the restoration
of the right of the existing colonies to claim admission at any time unconditionally. The
Legislative Assembly of South Australia wished the representation of all new States to
be unconditional ; and both Houses in New South Wales suggested the omission of the
power to impose terms and conditions — a suggestion which must be read with their
request for proportional representation in the Senate. At the Melbourne session these
various amendments were negatived. There was some debate on the words "admit"
and "establish." (Conv. Deb., Melb., pp. 694-8.) Before the first report the clause
was recast, and after the fourth report the words " from time to time " were omitted.

§ 470. "New States."

Two classes of States are distinctly recognized by the Constitution, (1) Original
States and (2) new States. Original States mean such States as are parts of the
Commonwealth at its establishment. New States are those which are subsequently
admitted or established.

The colonies which were qualified to join the Commonwealth as original States (see
clause 6) were seven in number : New South Wales, New Zealand, Queensland, Tasmania,
Victoria, Western Australia and South Australia. When the Constitution was framed
by the Convention it was of course uncertain how many of these colonies would embrace
the opportunity of becoming Original States, and how many might afterwards seek
admission as New States. In the actual event, every one of them except New Zealand
has become an Original State ; so that New Zealand is the only one of the seven colonies
to which this section can now apply ; though other new States may be admitted or
established in ways which we now proceed to discuss.

Modes of Creating New States. — This section contemplates two methods by
which new States may be created and organized as autonomous parts of the Common-
wealth— (1) by admission, (2) by establishment. The section does not specify the mode
or conditions according to which new States may be admitted or established, or out of
what country, or territory, or groups of population, new States are to be either admitted
or established. This information may, however, be gathered partly by implication and
partly from the express provisions of other sections of the Constitution.

( I. ) The admission of new States can only refer to the entry into the Commonwealth
of political communities which, prior to their entry, were duly constituted colonies,
such as : —

(a) Colonies commonly knoviTi as Australasian colonies existing at the establish-

ment of the Commonwealth, but not then joining it ; of which, in the
actual event, New Zealand is the only example.

(b) Colonies erected or to be erected in other dominions of the Crown ; for

example, New Guinea and Fiji.

division of other colonies.

This view is supported by clause 6 (Definition), which declares that " States "
shall mean such of the colonies of New South Wales, New Zealand, Queensland,
Tasmania, Victoria, Western Australia, and South Australia, including the Northern
Territory of South Aiistralia, as for the time being are parts of the Commonwealth, and
such colonies or territories as may be admitted or established. These colonies, when
admitted, will be transformed into States, and, like original States, become parts of the
Commonwealth.

§470.] NEW STATES. 969

(2.) The establishment of new States evidently includes the formation of States
either out of Federal territory, or out of States already in existence, Hy sub-division or
otherwise. Beyond the definition in clause 6, just cited, there is no actual affirmation
that new States may be formed out of federal territory. It may be assumed, however,
as unquestionable that, whilst some of the territories may permanently remain in a
dependent condition subject to the dominion and exclusive jurisdiction of the Common-
wealth, others, when sufficiently developed, and not required or appropriated for federal
purposes, will be organized into new States having the special privileges of State
Government with State representation in the Federal Parliament. In addition to the
establishment of new States out of federal territory, they may also be formed out of
pre-existing States by the three different methods ; namely, division, combination, and
accretion :

(a) By the partition of a State and the erection of its several parts into new

States :
(6) By the union of the whole of two or more States, so that such wholes may

constitute one State :
(c) By the junction of contiguous parts of two or more States, so that such
parts may constitute one State :

Little need be said as to the admission of States origiualU' qualified to become
j>arts of the Commonwealth, except that New Zealand — the only outstanding colony
which was so qualified — cannot demand admission as a right ; her admission depends
upon the discretion of the Federal Parliament, which may subject her to terms and
conditions. At the same time it is not likely that she would be accorded any differential
treatment ; she would probably be admitted on terms of equality with the original
States, proWded that her territory remained undiminished. With reference to the
admission of colonies formed by the sub-division of existing colonies, or any other
colonies erected after the establishment of the Commonwealth, the Federal Parliament
will have to determine when the moral, political, and material conditions of the popula-
tion of am' such newly organized colony are sufficient to justify the belief that its
people are able to exercise the power of State Government and fit to participate in
Federal Government. The considerations which should influence the Federal authority
in deciding when to establish a new State are thus weightily put by Dr. Burgess : —

" Congress ought not to pass its enabling act imtil it is clear that such a population
is fully prepared to exercise the powers of local self-government and to participate in
the general government. When this moment has arrived. Congress ought not to with-
hold its enabling act. This is a matter, however, of political ethics, not of constitu-
tional law ; and the Congress alone must judge when the proper requirements shall
have been fulfilled to warrant the change from centralized to federal government in any
part of the territory of the United States. I think, however, we may say that the
Congress is constitutionally bound not to clothe with commercial powers any population
which is un republican in its character — nor perhaps any population which is unnational
in character. But of this character again the Congress alone must be the judge. The
conclusion is that the Constitution recognizes no natural right to State powers in any
population, but views these powers as a grant from the sovereign .... which
latter employs the Congress to determine the moment from which the grant shall take
effect." (Burgess, Political Sci. ii. 163.)

" When the Congress discharges this function, however, the State powers, both as
to local government and participation in general government, are vested in the given
population by the Constitution, not by the Congress. I cannot convince myself that the
Congress has the right to determine what powers the new State shall or shall not exercise,
although I know that the Congress has assumed to do so in manv* cases. I think
the Constitution determines these questions for all the States alike. Certainly a sound
political science of the federal system could never countenance the possession of such a
power by the Congress. Its exercise might lead to interminable confusion. In fact, its
possession is inimical to the theory of the federal system. As we have seeu, that system
can only really obtain, where the power-distributing organ exists back of both the
general government and the States." (Id. p. 163.)

970 COMMENTARIES ON THE CONSTITUTION. [Seo. 121.

§ 471. "Terms and Conditions."

Under the Constitution of the Commonwealth the Federal Parliament has a free
hand in deciding the terms and conditions under which a new member may be admitted
into the Federal family system. It will be at liberty to impose such stipulations as it
thinks fit, unhampered by considerations of equality of Original States. Among the
terms and conditions which may V)e imposed on such new States, the following may be
suggested, viz., that such new States shall, before their admission, contain a population
duly organized and of a certain numerical strength ; that they shall have a Constitu-
tion suitable for State Government ; that such Constitution shall coutain a reasonable
rule of suflFrage ; that such Constitution should contain no provision contrary to the
recognized usages and policy of the other States. When Missouri applied for admission
as a State in the American Union, she was received on condition that the Constitution
should never be construed to authorize the passage of an act by which any of the citizens
of other States should be excluded from the enjoyment of any of the privileges and
immunities to which they were entitled under the Constitution of the United States.
(Benton's Thirty Year's View, ch. 2.) The State of Michigan was admitted to the Union
on the condition that she should surrender to the State of Ohio certain territory which
had been the subject of dispute between them, and her assent was required to be given by
a Convention of delegates chosen by the people for the purpose. (Campbell's Hist.
Mich. ch. 14.) The State of Arkansas was admitted on the condition that its Constitu-
tion should never deprive any citizen or class of citizens of the right to vote who were
entitled to vote by the Constitution at the time that instrument was presented for the
approval of Congress. (Cooley's Const. Law, p. 192-4. )

The Constitution of the Commonwealth expressly authorizes the Federal Parliament
to determine the extent of representation in either House to which new States shall be
entitled. It is to be noted that tlie rule of equal representation in the Senate is only
mandatory in the case of Original States ; new States cannot demand parity of senatorial
representation as a right ; the Federal Parliament may assign to such States the number
of senators which it thinks fit. In the House of Representatives the constitutional rule
is, that the number of members chosen in the several States must be in proportion to the
respective numbers of their people as determined by the quota (sec. 24). Notwithstand-
ing that section each Original State is entitled to a minimum number of five representa-
tives. No minimum number of representatives is prescribed in the Constitution for
new States ; and it would seem that even the principle of proportional representation in
the House of Representatives, though expressed without qualification in sec. 24, might
under this section be varied in the case of new States. The Federal Parliament would,
clearly, under the power conferred by sec. 121, be able to fix the minimum number of
senators, as well as the minimum number of representatives, to be assigned to the new
States. The mode of establishing new States is prescribed by sees. 123 and 124.

That part of the compact admitting Alabama as a State respecting the public
lands is nothing more than the exercise of a constitutional power vested in Congress, and
would have been binding on the people of the new State whether they consented to be
bound or not. (Pollard v. Hagan, 3 How. 212 ; Baker, Annot. Const, p. 164.)

The shores of navigable waters, and the soils under them, were not granted by the
Constitution to the United States, but were reserved to the States respectively ; and the
new States have the same rights, sovereignty, and jurisdiction over this subject as the
original States. (Pollard v. Hagan, 3 How. 212; Withers v. Buckley, 20 How. 92;
McCready v. Virginia, 94 U.S. 391 ; Bridge Co. v. United States, 105 U.S. 491. Jd.)

Prior laws of Congress in relation to the Territories and their government have no
force in the new State after its admission and adoption of a Constitution, unless they
are adopted by the State Constitution. (Permoli v. First Municipality, 3 How. 589.
Id.)

,W72.] NEW STATES. 971

Government of territories.

122. The Parliament may make laws for the government
of any territory*^"^ surrendered by any State to and accepted
by the Commonwealth, or of any territory placed by the
Queen under the authority of and accepted by the Common-
wealth, or otherwise acquired by the Commonwealth, and
may allow the representation of such territory*"^ in either
House of the Parliament to the extent and on the terms
which it thinks lit.

United Statbb.— The Congress shall have power to dispose of and make all needful rules and
regulations respecting the territorr or other property belonging to the United States, and
nothing in this Constitution shall be construed to prejudice any claims of the United
States, or of any particular State.— Const , Art. IV., sec. 3, sub-s. 2.

Historical Note. — Clause 3, Chap. VI. of the Commonwealth Bill of 1891 was as

follows : —

" The Parliament may make such laws as it thinks fit for the provisional adminis-
tration and government of any territory surrendered by any State to and accepted by the
Commonwealth, or any territory in the Pacific placed by the Queen under the authority
of and accepted by the Commonwealth, or otherwise acquired b\' the Commonwealth,
and may in any such case allow the representation of such territory in either House of
the Parliament to such extent and on such terms as it thinks fit."

At the Adelaide session, 1897, the clause was introduced in substantially the same
form, with the omission of the words "in the Pacific." In Committee, Sir Edwauxi
Braddon moved an amendment that the representation allowed by the Parliament should
be "in accordance with the ratio of representation provided in the Constitution." This
was negatived. Mr. Wise moved an addition to the effect that no federal territory
should be leased for a longer term than fifty years, or alienated in fee simple, except on
payment of a perpetual rent, subject to periodic appraisement on the unimproved value.
This was negatived by 21 votes to 13. (Con v. Deb., Adel., pp. 1012-9.) At the
Melbourne session, the word "provisional" was omitted at Mr. Barton's suggestion, as
being an undue limitation. An amendment suggested by the Legislative Assembly of
South Australia, and another moved by Mr. GljTin, similar to that moved by Mr. Wise
at Adelaide, were negatived. (Conv. Deb., Melb., pp. 698-9.) Drafting amendments
were made after the fourth report.

§ 472. " The Government of Any Territory."

The Parliament may make laws for the government of Federal territory. Federal
territory is coimtry within the jurisdiction of the Commonwealth and not forming part
of a State. Such territory may be acquired by the Commonwealth in the following
ways : —

(1.) It may be surrendered by a State and accepted by the Commonwealth.

(2. ) It may be placed by the Queen under the authority of and accepted by the
Commonwealth.

(3. ) It may be otherwise acquired by the Commonwealth.

Territory Surre>"dered. — By sec. 111, a State is authorized to surrender any
part of the countrj* within its constitutional limits to the Commonwealth, and the
Commonwealth is authorized to accept the same.

It seems that territory may be thus surrendered and accepted, either for the general
purpose of being administered as a territory by the Federal Government, or for some
special purpose for which it is required by the public service of the Federal Government.
(See Notes to sec. 111, supra.) "

972 COMMENTARIES ON THE CONSTITUTION. [See. 122.

Terbitory Placed by the Queen.— Any country not within the chartered limits
of a State may be placed by the Queen under the control and authority of the Common-
wealth. This grant of power will enable the Queen, with the concurrence of the Federal
Parliament, to give efiFect to any approved plan for transferring the Northern Territory
of South Australia, or British New Guinea, to the Commonwealth, and will enable those
countries to be placed under the authority of the Commonwealth.

Territories Otherwise Acquired.— The only other way of acquiring territory
expressly mentioned in the Constitution is under sec. 125, which provides that the seat
of Government shall be within territory which shall have been " granted to or acquired
by the Commonwealth." It seems, however, that territory may also be acquired by the
joint operation of sec. 51 — xxxi. and 52— ii. ; under which the Federal Parliament is
empowered to acquire property from any State for public purposes, and is given exclusive
jurisdiction over "places" so acquired. (See Notes to sec. 52, supra.) The phrase
" otherwise acquired " is wide enough to cover the acquisition of federal territory by
every mode within the power of the Commonwealth, either under the express words of
the Constitution, or by implication from its general g?(ast-sovereign powers — as for
instance, the acquisition of territory by purchase or by cession from other colonies or
countries not forming parts of the Commonwealth.

Government of Territory. — The Parliament is authorized to make laws for the
government of territory however acquired. Such territory may be ruled by the Federal
Authority, acting not merely as a local government but as a 5?ta«i- sovereign government.
It may rule the territory as a dependency, providing for its local municipal government
as well as for its national government, in such a manner as may seem politic, wise, and
just, having regard to its own interests as well as those of the people of the territory.
(American Ins. Co. v. Canter, 1 Pet. 511 ; National Bank v. Yankton Co., 101 U.S. 129.)

Territories may either be ruled by a Federal department charged to administer
Federal laws therein, or they may be granted municipal institutions and territorial
legislatures, empowered to make ordinances not inconsistent with the laws and
Constitution of the Commonwealth. Should such territorial Ordinances be contrary to
Federal law, they may be annulled by the Federal Parliament. (Mormon Church v.
United States, 136 U.S. p. 1.) In legislating for territories, the Federal Parliament
will possess the combined powers of the National and of the State Governments.
(American Ins. Co. v. Canter, 1 Pet. 511 ; Forsyth v. United States, 9 How. 571.) The
territories bear much the same relation to the general government that counties do to
the State, and the Federal Parliament may legislate for them as States do for their
respective municipal subdivisions. (National Bank v. Yankton County, 101 U.S. 129.
Baker, Annot. Const, p. 162.)

Territorial Legislation, — A clause in the organic act of the territory of Oregon
provided that the legislative power of the territory should "extend to all rightful
subjects of legislation not inconsistent with the Constitution of the United States."
Held that, under the power so conferred, the territorial legislature had power to enact a
law annulling the marriage of one of its citizens, even though the wife from whom he
was so divoi'ced had never resided within the territory. (Maynard v. Hill, 125 U.S.
190. Baker, Annot. Const, p. 167.)

Under the powers of the Federal legislature reserved in the organic acts of the
territories to annul the acts of their legislatures, the absence of Federal action annulling
a law that is in conflict with the organic act cannot be construed as recognition that such
law is valid. (Clayton v. Utah, 132 U.S. 632. Id.)

The Federal legislature can grant to a corporation existing under the laws of a State,
the right to construct a railroaxl within any of the territories of the Union, and the State
afterwards created out of the territorj^ could not put any impediment on the enjoyment
of the right thus conferred except upon the same terms that it could do when applied to
its own previously granted right. In such matters the State only succeeds to the
Federal authority over the territory. (Van Wyck v. Knevals, 106 U.S. 360 ; Railroad
Co. V. Baldwin, 103 U.S. 426. Id. 166.)

The Federal legislature may not only abrogate laws of the territorial legislatures,
but may itself legislate directly for the local goverimient. In other words, it has full

4§4T2--i73.] NEW STATES. 973

and complete legislative authority over the people of the territories and all departments
of the territorial governments. It may do for territories what the people under the
Constitution of the Union may do for the Stat«s. (National Bank r Yankton County,
101 U.S. 129 ; cited and approved in Mormon Church v. United States, 136 U.S. 1-43.
Id. 165.)

The people of the United States, as sovereign o>pV-uers of the national territories,
liave supreme power over them and their inhabitants. The Federal legislature may
prescribe the qualification of voters within a territory, and may exclude from such
privilege persons guilty of bigamy. (Murphy v. Ramsey, 114 U.S. 15. Id.)

Prerogative ik Territories. — In the case of Reg. v. Amer (42 Upp. Can. Q.B.
391), where numerous cases are cited on the prerogative of the Crown, Harrison, C.J.,
said : " The prerogative as to the issue of special commissions of Oyer and Terminer and
General Gaol Delivery exists in all its integrity in the case of what are now kno^^'n as
the unorganized tracts or provisional judicial districts. The exercise of the power by
the Governor-General of the Dominion, or by the Lieutenant Governor of the ProWnces*
is not inconsistent either with sub-sec. 27, sec. 91, or sub-sec. 14 of sec. 92 of the B.N.A.
Act." (Wheeler, C.C, p. 33.)

Judicial Authority ix Territories. — The legislative and judicial authority of
the Federal Government in the territories is illustrated bj- the Canadian case of Riel v.
The Queen, 10 App. Cas. 675. By the British North America Act, 1871, the North-west
Territories became part of the Dominion, which was given power to pass any law for the
peace, order, and good government thereof. The Dominion Parliament passed the
North-west Territory Act, 1880, which gave power to try all criminal cases to a tribimal
consisting of two magistrates and a jury of six, instead of a Judge and a jury of twelve
men, as in England. Louis Riel was tried by a territorial court on a charge of high
treason ; he was convicted and sentenced to death. Riel applied to the Privy Council
for special leave to appeal against the conviction, on the ground that the court had no
jurisdiction to try the case. His counsel contended that it was not competent for the
Dominion Parliament, under the Act of 1871, to take away from a person charged with
treason the right to be tried by a jur}' of twelve, whose verdict must be unanimous.
The Privy Council refused leave to appeal. (See extract from the judgment, per Halsbury,
L.C., quoted supra, p. 514.)

§ 473. *' Representation of such Territory."

A territory which has been surrendered to the Commonwealth by a State, or placed
under the authority of the Commonwealth by the Queen, or been other\vise acquired by
the Commonwealth, may be allowed representation in either house of the Federal
Parliament, to the extent and on such terms as the Parliament thinks fit. The repre-
sentation thus accorded is not representation as a State, but territorial representation.
It may be allowed not only — as in the case of new States—" to the extent " which the
Parliament thinks fit, but also "on the terms which it thinks fit." Apparentlj-, therefore,
the Parliament may not only fix the number of representatives for a territory, but
determine — at least in some degree — the mode of representation. In the United States,
there being no power to allow the territories to send members to Congress, the organized
territories are nevertheless allowed to be represented in Congress by delegates who may
speak but not vote. It would seem clear that under this Constitution the Parliament
may, if it thinks fit, allow the representation of territories by delegates of the same kind,
who, although allowed to sit and speak in the Senate or the House of Representatives,
would not be members of either House, or entitled to vote therein. The Parliament
may, however, under this section, allow a territory to be represented by actual members
in either house ; and in that case no terms would be imposed inconsistent with the
provisions of the Constitution as to mode of election, tenure, and right to vote. The
number of representatives which a territory may be allowed is of coarse absolutely in the
discretion of the Parliament.

974 COMMENTARIES ON THE CONSTITUTION. [See. 128.

Skat of Government.— In the United States, the District of Columbia is not allowed
even territorial representation. Under this Constitution, however, the power to allow
the representation of territories clearly includes the territory within which the seat of
Government is situated. Whether it would also include any "place" acquired by the
Commonwealth for public purposes is a more doubtful matter. It is of course most
unlikely that any territory— other than the seat of Government— acquired for public
purposes would be extensive enough to be entitled to a member of its own ; and the
practical question is whether the residents in such territory would have to be diirfranchised
altogether, or whether they might be thrown into one of the electoral divisions of the
State out of which the territory was carved. As regards Senate elections the answer
must clearly be in the negative ; the Senators for each State must be chosen by " the
people of the State." As regards elections for the House of Representatives the matter is
not so clear. Members of that House are chosen by " the people of the Commonwealth,"
which includes the people of the territories ; and although the mode of apportionment
provisionally prescribed by sec. 24 does not provide for the people of a territory being
counted in with the people of the State out of which the territory may have been carved,
yet that mode of apportionment is alterable. Sec. 29 provides that " a division shall not
be formed out of parts of different States ; " but there is no direct prohibition against
including an area of federal territory in an adjoining electoral division. On the whole,
it would seem that the residents of a federal territory which is too small to be allowed a
member of its own in the House of Representatives, need not necessarily be disfranchised,
but may, if the Parliament thinks fit, be included in one of the electoral divisions of
" the people of the Commonwealth."

Alteration of limits of States.

123. The Parliament of the Commonwealth may, with
the consent of the Parliament of a State, and the approval of
the majority of the electors of the State voting upon the
question, increase, diminish, or otherwise alter*^* the limits of
the State, upon such terms and conditions as may be agreed
on, and may, with the like consent, make provision respecting
the effect and operation of any increase or diminution or
alteration of territory in relation to any State affected.

Historical Note.— Clause 4, Chap. VI. of the Commonwealth Bill of 1891 was a?

follows : —

" The Parliament of the Commonwealth may, from time to time, with the consent
of the Parliament of a State, increase, diminish, or otherwise alter the limits of a State,
upon such terms and conditions as may be agreed to, and maj', with the like consent,
make provision respecting the effect and operation of any such increase or diminution or
alteration of territory in relation to any State affected by it."

At the Adelaide session, 1897, the clause was adopted in substantially the same
words. At the Melbourne session, it was verbally altered after the fourth report.

After the failure of the Convention Bill to poll the statutory number of votes in New
South Wales, both Houses of the Parliament of that colony recommended iiiUer alia)
" that better provision should be made against the alteration of the boundaries of a State
without its own consent— namely, by the protection afforded by clause 127 [sec. 128] as
to the representation of States." Accordingly at the Premiers' Conference, 1899, it was
agreed to amend the clause by inserting " and the approval of the majority of the
electors of the State voting upon the question."

§474.] NEW STATES. 975

§ 474. " Increase, Diminish, or otherwise Alter.''

The Federal Parliament is empowered to alter the limits of a State, snbject to two
conditions : — (1) The consent of the Parliament of the State, and (2) the approval of the
majority of. the electors of the State voting \ipon the question. The second comlition
was not in the section as framed by the Convention. It was inserted on the recommen-
dation of the Conference of Premiers pursuant to one of the joint resolutions passed by
both Houses of the Parliament of New South Wales ; and it is not quite clear whether
it in any way affects other sections by which the limits of States maj- be altered. For
instance, sec. 1 1 1 empowers the Parliament of a State to surrender any part of the State
to the Commonwealth ; sees. 121 and 124 empower the Federal Parliament to form a
new State by the separation of territory from a State, or by the union of States or parts
of States, with the consent of the States aflFected. Is the consent of the electors
required in any of these cases ?

It is to be noticed that the section is worded, not as a limitation of powers else-
where conferred, but as an additional and substantive power. " The Parliament of the
Commonwealth ma}*," subject to certain consent and approval, alter the limits of a State.
It seems, therefore, to refer to a class of cases not included in any other powers of
altering limits.

A limit is, strictly speaking, a boundary line ; and a line cannot be "increased or
diminished" except in length. But the word is also used in a secondary sense, to
denote " the space or thing defined by limits." (Webster, lutemat. Dictionary.) In
this sense, increasing or diminishing the limits of a State means altering the boundaries
of a State so as to increase or diminish its territory.

The limits of a State could be increased by the addition of a part of another State
or by the annexation of a Federal territory. The limits of a State could be diminished
by taking from it country along its border, and giWng it to another State or transferring
it to the Commonwealth. The limits of a State could be altered without increasing or
diminishing them, as for instance bj- a mutual rectification of boundaries, or by an etiual
exchange of strips of country by two adjoining States. Sec. 123 could receive a reason-
able construction by'confining its operation to the modification of boundaries of States by
cession and acquisition, giving and taking, which are within the possible mischief
intended to be guarded against. What was in the minds of those who advised and
framed the amendment was to make more adequate provision to guard against the
possible taking of country from one State and transferring it to another ; such as for
example the annexation of Riverina to Victoria.

The limits of a State are clearly diminished when its Parliament consents to a new
State being formed by a separation of territory from the State (sees. 121 and 124) ; and
also when its Parliament surrenders to the Commonwealth a part of the State along its
boundary (sec. 111). On the other hand, the surrender of an internal area might be
made without diminishing or altering its limits. But it can hardly be contended that
section 123 operates as a restriction of, or condition on, the exercise of the independent
powers conferred by sec. Ill, or by sees. 121 and 124. It contains not the slightest
allusion to the surrender of territory' to the Commonwealth, or the establishment of
new States ; and it purports, not to restrict those powers, but to confer an additional
power.

Even as confined to the adjustment of boundaries between States, the section
embodies an extraordinary limitation on the power of the State Parliaments. Hitherto,
under the Colonial Boundaries Act, 1895, the Queen has had power to alter the
boundaries of any of the Australian colonies with the consent of the colony — i.e., with
the consent of the Parliament of the colony. Accordingly, adjustments of boundaries
between colonies could be arranged between the Parliaments of the colonies, and then
effected by Order in Council. Under this section, however, the consent of the Parlia-
ments of the two States concerned must be supported by a Referendum in each of those
States. This provision is an invasion of the principle, recognized by the Convention.

976 COMMENTARIES ON THE CONSTITUTION. [Sec. 124.

that the Constitutions of the States are not interfered with except so far as is absolutely
necessary. In the case of an amendment of the Federal Constitution involving an
alteration of the limits of a State, the requirement that a majority of the electors of the
State should consent is appropriate enough, as the electors are the ratifying bod}^ ; but
this section deprives the State Parliaments, without apparent justification, of an existing
legislative power.

Formation of new States.

124. A new State may be formed*^^ by separation of
territory from a State, but only with the consent of the
Parliament thereof, and a new State may be formed by the
union of two or more States or parts of States, but only with
the consent of the Parliaments of the States affected.

Umted States. — But no new State shall be formed or erected within the jurisdiction of any
other State, nor any State be formed by the junction of two or more States, or parts of
States, without the consent of the Legislatures of the States concerned, as well as of the
Congress. — Const., Art. IV., sec. 3, sub-s. 1.

Historical Notk. — Clauses, Chap. VI., of the Commonwealth Bill of 1891 was
as follows : —

"A new State shall not be formed by separation of territory from a State without
the consent of the Parliament thereof, nor shall a State be formed by the union of two
or more States or parts of States, or the limits of a State be altered, without tlie
consent of the Parliament or Parliaments of the State or States affected."

At the Adelaide session, this clause was adopted verbatim.

At the Melbourne session, Mr. Walker suggested that to meet the case of Northern
and Central Queensland, the power which the Queen then had to subdivide that colony
should be reserved (see Imperial Acts 5 and 6 Vic. c. 76, sec. 51 ; 13 and 14 Vic c.
59, sec. 32 ; 18 and 19 Vic. c. 54, sec. 7 ; 24 and 25 Vic. c. 44, sec. 2). (Melb. Con v.
Deb., pp. 669-70.) At a later stage, Mr. Walker moved the insertion of the following
new clause : —

" If the colony of Queensland adopts this Constitution, or is admitted as a State of
the Commonwealth, nothing in this Constitution shall be taken to impair any right
which the Queen may be graciously pleased to exercise by virtue of Her Majesty's royal
Prerogative, or under any statute, in respect of the division of Queensland into two or
more colonies ; but so that the Commonwealth shall retain the powers conferred on it
by this Constitution to impose terms and conditions in respect of the establishment of
any such colony as a State."

It was feared, however, that in the eyes of a large section of the inhabitants of
Queensland this clause would be unwelcome, and at Mr. Barton's suggestion Mr. Walker
withdrew the clause in order that the Queensland Government might be consulted.
This was done, with the result that the I'remier of Queensland telegraphed to the effect
that the proposed clause would be likely to injure the prospects of Federation in
Queensland ; though the Presidents of the Northern and Central Separation Leagues
telegraphed their support. The proposed new clause was negatived. (Con v. Deb.,
Melb., pp. 1690-1702,2398-2400.) The clause was recast before the first report, and a
verbal alteratiofi was made after the fourth report.

§ 475. "A New State May be Formed."

Section 121 empowers the Federal Parliament to establish new States without
indicating the country out of which they are to be formed or the people whom they are
to include. In the Notes to sec. 122, we have indicated the probable intention of the
Constitution to authorize the establishment of new States out of certain claa3es of
Federal territories. We now come to sec. 124, which does not contain a fresh grant of

^475.] NEW STATES. 977

power, but merely indicates several methods according to which the power granted b3'
sec. 121 may be exercised. The several methods defined comprehend the creation of new
States out of pre-existing States, but of course the specification of methods does not
«xhaust or limit the generality of sec. 121.

The first method defined is by the separation of territory from a State ; the second
is by the junction of two or more States ; the third is by the union of two or more parts
of States. The most important question, in connection with the interpretation of this
section, is, what are the conditions precedent to the exercise of the power ? The section
itself says it can be done "only by the c-onsent of the Parliament of the States affected."
If sec. 123 is applicable to the creation of new States out of old ones, then an additional
condition precedent must be added to sec. 124, which does not appear on its face, making
it read thus : " only with the consent of the Parliament of the States affected and of
the majority of the electors of the States voting upon the question." The arguments
against such a \iew have been already presented in the Notes to sec. 123.

«2

978 COMMENTARIES ON THE CONSTITUTION. [Sec. 126.

CHAPTER VII.— MISCELLANEOUS.

Seat of Government.

> 125. The seat of Government*"^ of the Commonwealth
shall be determined by the Parliament, and shall be within
territory which shall have been granted to or acquired by the
Commonwealth"*"', and shall be vested in and belong to the
Commonwealth'*^^, and shall be in the State of New South
Wales, and be distant not less than one hundred miles from
Sydney.

Such, territory shall contain an area of not less than one
hundred square miles, and such portion thereof as shall
consist of Crown lands shall be granted to the Commonwealth
without any payment therefor.

The Parliament shall sit at Melbourne until it meet at
the seat of Government.

United Statks. -[The Congress shall have power] to exercise exclusive legislation in all cases
whatsoever over such District (not exceeding ten miles square) as may, by cession of
particular States, and the acceptance of Congress, become the seat of Government of the
United States.— Const. Art. I., sec. 8, sub-s. 17.

Canada. — Until the Queen otherwise directs, the seat of Government of Canada shall be
Ottawa.— B.N.A. Act, 1867, sec. 16.

Historical Note. — Clause 1 Chap. VII. of the Commonwealth Bill of 1891 was as
follows : —

" The seat of Government of the Commonwealth shall be determined by the Par-
liament. Until such determination is made, the Parliament shall be summoned to meet
at such place within the Commonwealth as a majority of the Covei-nors of the States, or,
in the event of an equal division of opinion amongst the Governors, as the Governor-
General shall direct."

In Committee, Mr. G. R. Dibbs moved an amendment to make the clause read : —
" The seat of Government of the Commonwealth shall be Sydney, New South Wales."
This was negatived by 26 votes to 4— all the New South Wales representatives, except
Mr. Dibbs, voting against it. (Conv. Deb., Syd., 1891, pp. 899-900.)

At the Adelaide session, 1897, the same clause was adopted almost verbatim. In
Committee, Mr. Walker proposed to insert "and shall be within an area which shall be
federal territory." It was thought better however to leave the Parliament unfettered —
giving them the power, under section 52, to exercise exclusive jurisdiction over the
seat of Government, but not expressly making it'federal territory. The amendment waa
negatived. (Conv. Deb., Adel., pp. 1019-20.) At the Melbourne session, a suggestion by
the Legislative Council of New South Wales, that the seat of Government should be "in
Sydney in the colony of New South Wales," was submitted. This evoked from Sir
Edward Braddon an amendment in favour of " some suitable place in Tasmania ; " from
Sir George Turner the suggestion of " St. Kilda," and from Mr. Symon the suggestion
of "Mount Gambler." The amendments were negatived, and Mr. Lyne then moved

§ 476 ] MISCELLANEOUS. 979

that the seat of Government should be " in the colony of New South Wales," but he was
induced by his colleagues to withdraw it. (Conv. Deb , Melb. , pp. 700-12.) Later on,
Sir George Turner proposed to insert the words "and shall be within federal territory,"
w^hereupon Mr. Lyne moved to add to this amendment the words " and within the colony
of New South Wales." This time he pressed the matter to a division, but was defeated
by 33 votes to 5. Mr. Peacock, to show that this vote was not a claim to the capital
by Victoria, moved to insert the woitIs " and within the colony of Victoria," which was
negatived by 36 votes to 3. Sir George Turner's proposal, that the capital should be
within federal territory, was then carried by 32 votes to 12. (Conv. Deb., Melb., pp.
1802-16.) After the fourth report, the words " territory vested in the Commonwealth"
were substituted for '* federal territory," and the clause was adopted by the Convention,
in the following form : —

" The seat of Government of the Commonwealth shall be determined by the
Parliament and shall be within territory vested in the Commonwealth. Until such
determination the Parliament shall be summoned to meet at such place within the
Commonwealth as a majority of the Governors of the States, or, in the event of an
equal division of opinion among the Governors, as the Governor-General shall direct."

After the Convention Bill had failed to secure the statutory majority in New South
Wales, the Legislative Assemblj- of that colony recommended that provision should be
made for the establishment of the federal capital "at such place within the boundaries
of New South Wales as the Federal Parliament should determine." The Legislative
Council of New South Wales asked that the capital should be in Sydne}-. At the
Premiers' Conference, 1899, it was agreed to amend the clause to its present form. In
the Imperial Parliament, the words " if New South Wales be an Original State," and
" if Victoria be an Original State " were omitted as no longer necessary.

§ 476. " Seat of GoYernment."

The phraseology of this section, and its involved grammatical construction, raise
several difficult questions of interpretation. How is the seat of Government to be
acquired by the Commoawealth ? What is the effect of its acquisition ? And what is to
happen pending the determination of the seat of Government ? These and other
questions must be answered ; though the obscurity of the section makes it impossible, in
the absence of judicial interpretation, to answer them with absolute confidence.

QcESTios AS TO A Tkmporary Seat of Goverxment. — The question has been raised
as to whether, before the determination of the seat of government by the Federal
Parliament, some place raaj' be appointed as a provisional seat of government ? Can
there be a temporary capital prior to the selection of the permanent capital ? Can such
temporary capital be situated outside the State of New South Wales? At what place
are the bulk of executive acts to be performed prior to the Federal Administration
being provided with its statutory domicile ? These questions were abh' discussed, first
in an opinion b}' Mr. R. E. O'Connor, Q.C., presented to the Legislative Assembly of New
South Wales on 20th July, 1900, and in an answering opinion by Mr. Irvine, Attorney-
General of Victoria, subsequently read in the Legislative Assembly of that colony.

In considering this section, and its possible meaning, it must be noticed that it is
composed of several mandatory proWsions succeeding one another, each being introduced
by the verb " shall." The problem of interpretation is — are these mandates blended
or connected one with the other, and intended to operate as parts ot one scheme
beginning with and inseparably associated with the determination of the Parliament ?
Or can any of these mandates, from this collocation, be severed from the others so as to
operate independently of and antecedently to the others ? On the one hand it may be
argued that the parts of the section relating to the grant, or acquisition, of a particular
area of teri'itory, and the situation of the territory in New South Wales, not less than 100
miles from Sydney, do not come legally into force until the Federal Parliament proceeds
to determine the site ; that prior to such determination the words " shall be in the State

980 COMMENTARIES ON THE CONSTITUTION. [Sec. 126.

of New South Wales " have no legal operation, or effect, there being no determination
upon which they can possibly bear ; that, in fact, the Constitution is silent as to any
seat of government before the statutory determination ; that before such determination
there is consequently no fixed seat of government, and the whole question is at large,
with the exception of the last paragraph containing the mandate that the Parliament
shall sit at Melbourne until it meets at "the Seat of Government." What seat?
Obviously the seat fixed by the determination, showing that until such determination
there is no seat of government witliin the meaning of this section.

If this view be correct then the Executive Government of the Commonwealth could,
before the determination of the seat by federal law, be conducted in any part of the
Commonwealth, whilst considerations of convenience might suggest that it should - at
least while the Parliament was sitting — be conducted in that part of the Commonwealth
appointed for the temporary meeting of the Parliament, so that the Executive department
might be in proximity to and in touch with the Legislative department.

On the other hand the view has been pressed with some force that the mandate
" The seat of Government of the Commonwealth .... shall be in the State of
New South Wales" is one which can be so severed from the other mandates as to
Parliamentary determination, vesting, acquisition, &c., that it comes into force and
action as a constitutional declaration from the moment that the Commonwealth is
established, on the 1st January, 1901 ; that it operates continuously from that moment ;
that until the statutory determination of a site, within the qualified territory of New
South Wales, the seat of government must be somewhere within that qualified territory
and not outside of it, that all the Federal Parliament can ao is to select a site within the
part of New South Wales so qualified.

If this latter contention be the correct one, the federal capital will, from the
establishment of the Commonwealth, and until the statutory determination of the site,
be somewhere within the favoured region of New South Wales, 100 miles from Sydney,
and the particular spot -within the favoured region at which the mass of Executive Acts
should be performed could be selected by the Federal Government, save and except the
performance of such administrative business as must necessarily be performed in
Melbourne in connection with the sittings of the Parliament.

Whichever view may be adopted, no serious constitutional difficulties, or compli-
cations, need arise in actual practice. The Constitution does not direct that the
Governor- General must reside at the seat of Government, nor does it require Executive
acts to be perfoimed there. The implication, or rather the assumption, no doubt is that
the Governor-General will reside there, so far as may be necessary to perform the duties
of his office, and that all high administrative acts shall, in like manner, be performed
there, and recorded there, so far as is practicable. But, whatever the implication or
assumption, no penalty of invalidity or nullity could possibl}' result from non-
observance thereof. No legal sanction whatever is annexed to any breach of any
understanding connected with the seat of Government. The question involved will,
therefore, be decided, not only from the strictly constitutional aspect, but also from
the point of view of convenience, mutuality of interest, and good faith.

Representation of Territoky. — As to the representation in the Federal Parlia-
ment of the seat of Government and the surrounding territory, see Note, § 473, Hupra.

§ 477. " Granted to or Acquired by the Commonwealth.'*

Acquisition of the Site. — The chief question which has arisen in connection with
these words is whether the determination of the seat of Government rests, in the last
resort, solely with the Federal Parliament, or whether the Federal Parliament is limited
in its choice to sites offered by the Parliament of New South Wales. The ojMjning
words of the section strongly favour the former view ; but it has been argued tliat the
words " shall be within territory which shall have been granted to or acquired by the

§477] MISCELLANEOUS. 981

Commonwealth" point to a prior act of cession by the Parliament of Nevr South Wales,
and that -no express power to " acquire " being given by this section — the acquisition
must lie by surrender and acceptance under sec. 111.

The word "granted" does not occur elsewhere in the Constitution, exc-ept in the
second paragraph of this section, where it is provided that so much of the territory as is
Crown lands " shall be granted to the Commonwealth " without payment. What then
is the meaning of the alternatives of grant or acquisition ? One explanation that has
been suggested is that Crown lands are to be "granted" and other lands are to be
" acquired ; " but this is not satisfactory, because the section deals with territory, not
with property ; and the distinction between Cro^vn lands and privately owned lands is
one of property, not of territory.

It is submitted that the word " granted " contemplates, as one mode of ac({uisition,
the surrender of territory by the Parliament of New South Wales, and its acceptance bj-
the Federal Parliament, under sec. 111. It is undoubtedly to be desired that the site
should be mutixally agreed upon between the Commonwealth and New South W'ales ; and
we may anticipate that if any such agreement is possible no other mode of acquisition
will be resorted to.

But what is the alternative mode of acquisition contemplated by the words "or
acquired ?"' It can hardly refer to acquisition in the exercise of the power of "eminent
domain" under sec. 51 — xxxi., because that applies to "property," not to territory.
Nor can it refer to acquisition by surrender and acceptance under sec. Ill, because that
is already provided for by the word " granted." The onlj' conclusion is that the words
" or acquired " refer to a difleient mode of acquisition ; and the true interpretation
seems to be that, failing an agreement between New South Wales and the Common-
wealth, this section confei-s upon the Federal Parliament a reserve power to acfjuire a
site without the concurrence of the Parliament of New South Wales. In other words,
the power to determine the seat of Government, coupled with the direction that the seat
of Government shall be within territory granted to or acquired by the Commonwealth,
implies that the Commonwealth, in the absence of a grant, has power to acquire the
necessary territory without grant.

That this was the intention of the framers seems clear from the history of the
section. In the Adelaide Bill (see Hist. Note) it was pro\ided simply that the seat of
Government " shall be determined by the Parliament." At the Melbourne session, the
words "and shall be %vithin federal territory" were added. This was expanded by the
Premiers" Conference to read "and shall be within territory which shall have been
granted to or acquired by the Commonwealth, and shall be vested in and belong to the
Commonwealth." The object appears to have been to supplement the power of surrender
and acceptance by a special power of federal acquisition, to make it clear that the duty
of the Federal Parliament to determine the site could not be blocked by a refusal of
New South Wales to surrender the territory needed.

This view seems to be supported by a general perusal of the section. There is a
clear declaration tliat the seat of Government is to be determined by the Parliament,
but there is no declaration that the concurrence of New South Wales is essential. Had
that been the intention, it would surely have been expressly mentioned, and not left to
be gathered by implication— and especially by implication from such wide words as
"granted or acquired."

Against this construction, it may be urged that whilst the federal territory is to
contain an area of " not less than 100 stpare miles," no maximum limit is fixe«l. It
can hardly be supposed that the Federal I'arliament has power to federalize an unlimited
area of New South Whales as a scat of Government. But the answer seems to be that
the power only extends to the -acquisition of an area reasonably necessary for the
purpose ; and perhaps in the case of acquisition without surrender, the reasonable
maximum would be held not to exceed, or greatly exceed, the minimum of 100 square
miles.

982 COMMENTARIES ON THE CONSTITUTION. [Sec. 125.

Mr. Oliver's Report.— In November, 1899, in view of the fact that the Parliament
of New South Wales might be called upon to offer or recommend a site for the seat of
Government, the Government of New South Wales appointed Mr. Alexander Oliver, the
President of the Land Court of that colony, as a Commissioner to enquire into and
report upon the suitability of sites. He inspected a number of sites and took a quantity
of evidence ; and in his report, which was laid on the table of the Legislative Assembly
on 30th October, 1900, he reported favourably upon three sites, in tlie neighbourhood of
Orange, Yass, and Bombala respectively.

Measurement of Distance. — It would seem that the distance of 100 miles from
Sydney is to be measured in a straight line, in accordance with the provisions of sec. 34
of the Imperial Interpretation Act, 1889 (p. 793, nupra). Distances mentioned in Acts
of New South Wales are measured by the nearest road (Interpretation Act [N.S.W.],
1897, sec. 35); but that can hardly be relied upon to show a "contrary intention" within
the meaning of the Imperial Act.

§ 478. ''And shall be Vested in and Belong to the
Commonwealth."

The grammar of this section is by no means clear. Is it the " seat of Government "
or the "territory" within which the seat of (4overnment is situated that is to be vested
in and belong to the Commonwealth ? In the clause as framed by the Convention it was
clear that the " territory" was to be vested in the Commonwealth, and it is submitted
that this is the true reading of the section. That is to say, the words " and shall be
vested," &c., are part of the relative sentence " which shall have been granted," &c.,
referring to the antecedent "territory."

It is clear from this construction that the Commonwealth acquires under this section
territorial rights only, and not proprietary rights. What the Commonwealth may acquire
under section 51 — xxxi. is " property;" what itacquires under this section is "territory."
Landowners or Crown Lessees within the territory chosen for the seat of Government
will not be dispossessed unless the Federal Parliament chooses to dispossess them. The
result of the transfer of territory will be that instead of holding from the Crown, as
represented by the Government of New Soutii Wales, they will hold from the Crown as
represented by the Government of the Commonwealth ; and the Commonwealth, in the
exercise of its exclusive jurisdiction over the territory, will be free to resume so much of
the privately opened land as it requires, in accordance with laws passed under the power
of "eminent domain " (sec. 51 -xxxi.), and subject, of course, to the constitutional
requirement of just compensation.

Crown Lands — The meaning of the provision that Crown lands shall be granted
without payment therefor is not clear, and seems to involve some confusion between
territorial and proprietary rights. It maj' be construed to apply to lands which are
Crown lands within the meaning of the Crown Lands Acts of New South Wales ; or it
may — as Mr. Oliver suggests in his report— apply only to vacant Crowra lands. It does
not appear to mean that the occupation of Crown tenants is necessarily to be disturbed
by the acquisition of the territory. It is perhaps intended to mean that the rights of
the Crown, in any lands whatever, shall not be the subject of compensation, although
the proprietary rights of individuals, if their land is resumed, must be dealt with on just
terms (sec. 51 — xxxi.). Mr. Oliver, however, suggests that in the case of lands which arc
not "Crown lands" in the ordinary acceptation of the term, the State may be entitled
to compensation for the loss of its rights of taxation.

Exclusive Power. — The seat of Government, when determined by the Parliament
and duly acquired, becomes subject to the jurisdiction of the Federal Parliament, which
has exclusive power to make laws for its peace, order, and good government. (See notes
to sec. 52 — i.)

§ 479.] MISCELLANEOUS. 983

Power to Her Majesty to authorise Goverhor-General to appoint Deputies.

126. The Queen may authorise the Governor-General to
appoint any person, or any persona jointly or severally, to be
his deputy or deputies*"^ within any part of the Common-
wealth, and in that capacity to exercise during the pleasure
of the Governor-General such powers and functions of the
Governor-General as he thinks fit to assign to such deputy or
deputies, subject to any limitations expressed or directions
given by the Queen ; but the appointment of such deputy or
deputies shall not affect the exercise by the Governor-
General himself of any power or function.

Canada. — It shall be law-f ul for the Queen, if Her Majesty thinks fit, to authorize the Governor-
General from time to time to appoint any person or any persons jointly or severally to be
his Deputy or Deputies within any part or parts of Canada, and in that capacity to
exercise during the pleasure of the Governor-General such of the powers, authorities,
and functions of the Governor-General as the Got-emor-General deems it necessary or
expedient to assign to him or them, subject to any limitations or directions expressed or
given by the Queen ; but the appointment of such a Deputy or Deputies shall not affect the
exercise by the Governor-General himself of anv power, authority, or function. — B.N. A.
Act, 1867, sec. 14.

Historical Xote. — Clause 2, Chap. VII., of the Commonwealth Bill of 1891, was
in almost identical words, and was adopted verbatim at the Adelaide session, 1897. At
the Melbourne session, suggestions by the Legislative Assembly of South Australia, to
limit the provision to a single deputy for the whole Commonwealth, and to omit the
concluding sentence, were negatived. (Conv. Deb., Melb., pp. 712-3.) Verbal amend-
ments were made after the fourth report.

§ 479. " Deputy or Deputies."

The Deputies provided for in this section are quite distinct from the Acting-
Govemor-Greneral, or Administrator of the Government of the Commonwealth, referred
to in sec. 4, supra. An Acting-Govemor-General is appointed by the Queen, and acts
only in the absence or incapacity of the Governor-General, or during a vacancy in the
office ; and while he so acts, he has all the powers of the Governor-General. (See
Notes, sec. 4, mip^-a.) A Deputy, on the other hand, is merely a person to whom the
Queen may enable the Governor-General himself — subject to the Royal instructions — to
delegate particular duties in particidar localities. The immense area of the Common-
wealth may make it convenient that some of the powers of the Governor-General, in
some parts of the Commonwealth, should be thus exercisable by deputy.

This provision has been adopted from a similar section in the Canadian Constitu-
tion, respecting which Mr. Wheeler has the following note :

" Does this mean that there may be two persons with power to exercise one
function ? The clause proWdes that the Governor-General may appoint a deputy and
may at the same time reserve the power of himself exercising the functions. (Att.-Gen.
Canada ». Att.-Gen. Ontario, 1892, 3 Out. App. 6 ; 19 Out. Rep. 47. See where a
Deputy-Governor acted, Reg. v. Amer, Feb. 23, 1878, 42 Upp. Can. Q.B. at p. 408).'*
< Wheeler, C.C, 10.)

984 COMMENTARIES ON THE CONSTITUTION. [Sec. 127.

Aborigines not to be counted in reckoning population.

127. In reckoning the numbers of the people of the
Commonwealth, or of a State' or other part of the Common-
wealth, aboriginal natives^^° shall not be counted.

Historical Note. — In the Commonwealth Bill of 1891, Sir Samuel GriflBth, in
Committee, added a new clause as follows : — " In reckoning the numbers of the people
of a State or other part of the Commonwealth, aboriginal natives of Australia shall not
be counted." (Conv. Ueb., Syd., 1891, pp. 898-9.)

At the Adelaide session, 1897, the same clause was adopted, with the omission
of the words '* of Australia." In Committee, Dr. Cockburn urged that natives
who were on the rolls ought not to be debarred from voting ; but it was pointed out
that the clause did not affect their rights. (Conv. Deb., Adel. , p. 1020.) At the
Melbourne session, a suggestion by the Legislative Councils of New South Wales and
Tasmania, to insert " and aliens not naturalized," was negatived. (Conv. Deb., Melb.,
pp. 713-4.) After the fourth report, the Avords "of the Commonwealth or" were
inserted.

480. "Aboriginal Natives."

The following figures show the number of aborigines enumerated or believed to-
exist in each Australasian Colony in 1891 :—

Colony.

Males.

Females.

Total.

Victoria ...

New South Wales

Queensland (1881)

South Australia

Western Australia
Tasmania

Commonwealth

New Zealand

Total

325

4,559

10,719

14,510

3,516

240
3,721
9,866
9,279
2,729
66

565

8,280
20,585
23,789

6,245
139

33,702
22,861

25,901
19,1.32

59,603

41,993

101,596

56,563

45,033

In most, if not in all, of the colonies, this enumeration was incomplete. In Victoria,
whilst onlj' 565 (including half-castes) were enumerated, 731 are believed to be in
existence. In Queensland no attempt wrs made to enumerate or estimate the number of
aborigines, therefore the number returned in 1881 — which is believed to understate the
truth — has been repeated. In South Australia the aborigines were not regularly
enumerated, the figures given being derived from estimates. In Western Australia only
civilized aborigines were enumerated. In the numbers given for that colony 575 are
half-castes. In Tasmania there are no longer any aborigines of unmixed race, the last
male having died in 1869 and the last female in 1876. There are, however, a few half-
castes. With the Maoris of New Zealand, 40 Morioris are included. These are the last
surviving aboriginal inhabitants of the Chatham Islands, which are a group lying about
360 miles to the east of New Zealand, and form a dependency of that colonj-. (Mr.
J. J. Fenton, Assistant Government Statist of Victoria, 1899.)

ALTERATION OF THE CONSTITUTION. 985

CHAPTER VIIL— ALTER A.TIOX OF THE
CONSTITUTION.

Mode of alterinfr the Constitution.

128. This Constitution shall not be altered except in the
folio winof manner : —

The proposed law for the alteration**^ thereof must be
passed by an absolute majority of each House of the Parlia-
ment, and not less than two nor more than six months after
its passage through both Houses the proposed law shall be
submitted in each State to the electors qualified to vote for
the election of members of the House of Representatives.

But if either House passes any such proposed law by an
absolute majority, and the other House rejects or fails to
pass it or passes it with any amendment to which the first-
mentioned House will not agree, and if after an interval of
three months the first-mentioned House in the same or the
next session again passes the proposed law by an absolute
majority with or without any amendment which has been
made or agreed to by the other House, and such other House
rejects or fails to pass it or passes it with anj^ amendment to
which the first-mentioned House will not agree, the Governor-
General may submit the proposed law as last proposed by
the first-mentioned House, and either with or without any
amendments subsequently agreed to by both Houses, to the
electors in each State qualified to vote for the election of the
House of Representatives.

When a proposed law is submitted to the electors the
vote shall be taken in such manner as the Parliament pre-
scribes. But until the qualification of electors of members of
the House of Representatives becomes uniform throughout
the Commonwealth, only one-half the electors voting for and
against the proposed law shall be counted in any State in
which adult sufl:rage prevails.

986 COMMENTARIES ON THE CONSTITUTION. [Sec. 128.

And if in a majority of the States a majority of the
electors voting approve the proposed law, and if a majority of
all the electors voting also approve the proposed law, it shall
be presented to the Governor-General for the Queen's assent.

No alteration diminishing the proportionate representa-
tion of any State in either House of the Parliament, or the
minimum number of representatives of a State in the House
of Representatives, or increasing, diminishing, or otherwise-
altering the linaits of the State, or in any manner affecting the
provisions of the Constitution in relation thereto, shall become
law unless the majority of the electors voting in that State
approve the proposed law.

United Statrs. — The Congress, whenever two-thh-ds of both Houses shall deem it necessary,
shall propose amendments to this Constitution, or on the application of the legislatures of
two-thirds of the several States, shall call a Convention for proposing amendments, which,
in either case, shall be valid to all intents and purposes, as part of this Constitution, when
ratified by the legislatures ot three-fourths of the several States or by Conventions of
three-fourths thereof, as the one or the other mode of ratification may be proposed by the
Congress : Provided that no amendment, which may be made prior to the year one
thousand eight hundred and eight, shall in any manner affect the first and fourth clauses
in the ninth section of the first article ; and that no State, without its consent, shall be
deprived of its equal suffrage in the Senate.— Const. Art. V.
Switzerland.— The Federal Constitution may at any time be [wholly or partialhj] amended.—
Art. 118.

A [total] revision is secured through the forms required for passing federal laws. —
Art. 119.

When either House of the Federal Assembly passes a resolution for the [total]
revision of the Federal Constitution and the other House does not agree ; or when 50,000
Swiss voters demand a [total] revision, the question whether the Constitution ought to
be amended is, in either case, submitted to the Swiss people, who vote yes or no. If in
either case a majority of the Swiss citizens who vote pronounce in tlie affirmative there
shall be a new election of both Houses for the purpose of undertaking the revision. —
Art. 120.

[A partial revision may take place ly means of the popular initiative, or throiigh the
forms prescribed for ordinary federal legislation. The popular initiative consists in a
demand by 50,000 Swiss voters for the addition' of a new article to the Constitution, or the
repeal or modification of certain constitutional articles already in force.] . . . Art. 121.

The revised Federal Constitution [or the revised part thereof] shall take effect when it
has been adopted by the majority of Swiss citizens who take part in the vote thereon
and by a majority of the States.— Art. 123.

[The words in brackets were introduced by the amendment of 1891. See Deploige,
Referendum in Switzerland, p. 125.]
Germany.— Amendments in the Constitution shall be made by legislative enactment. They
shall be considered as rejected when fourteen votes are cast against them in the Federal
Council.— Art. 78, sec. 1.

The provisions of the Constitution of the Empire by which certain rights are
secured to particular States of the Union in their relation to the whole, shall only be
modified with the consent of the States affected.— Art. 78, sec. 2.

Historical Note. — The clause as first proposed at the Sydney Convention of 1891
was as follows : —

" The provisions of this Constitution shall not he altered except in the following
manner : —

Any law for the alteration thereof must be passed by an absolute majority of the
Senate and House of Representatives, and shall thereupon be submitted to Conventions
to be elected by the electors of the several States qualified to vote for the election of
members of the House of Representatives.

The Convention shall be summoned, elected, and held in such manner as the
Parliament of the Commonwealth prescribes by law, and shall, when elected, proceed to
vote upon the proposed amendment.

And if the proposed amendment is approved by the Conventions of a majority of
the States, it shall become law, subject nevertheless to the Queen's power of disallow-
ance.

ALTERATION OF THE CONSTITUTION. 987

IJiit an amendment by which the proportionate representation of any State in either
House of the Parliament of the Commonwealth is diminished, shall not become law
without the consent of the Convention of that State. "

In Committee, it was pointed out that the ratifying process by " Cunventions of a
majority of the States," gave a second appeal to the States, but none to the people. To
obviate this, Sir Samuel Griffith suggested to add the words, " and if the people of the
States whose Conventions approve of the amendment are also a majority of the people of
the Commonwealth." Mr. Playford pointed out that this was a clumsy device, because
instead of ascertaining the total vote for and against, it added the minority in each State
to the majority. He contended that a better principle would be to take the vote of the
electors directly. Dr. Cockburn moved the omission of the words " Conventions to be
elected by," in order that the question should be submitted to the electors. Sir Samuel
Griffith favoured the Conventions, as being better able to deal with the complicated
questions submitted, but Mr. Deakin pointed out that the Conventions could only say
yes or no, and that the electors ought to be allowed to say yes or no themselves, instead
of electing men pledged to say it for them. However, the amendment was defeated by
19 votes to 9. Sir Samuel Griffith's amendment, requiring that the people of the States
whose Conventions approved should be a majority of the people of the Commonwealth,
was then carried ; and the words declaring that the amendment, when ratified, should
" become law, subject, nevertheless, to the Queen's power of disallowance," were replaced
by the words " be presented to the Governor-General for the Queen's assent." In the
concluding paragraph words were inserted to prevent an amendment diminishing the
•' minimum number of representatives " of a State without the consent of the Convention
of that State. (Conv. Deb., Syd., 1891, pp. 884-98.)

At the Adelaide session, the clause was drafted as follows : —

" The provisions of this Constitution shall not be altercil except in the following
manner : —

Any proposed law for the alteration thereof must be passed by an absolute majority
of the Senate and of the House of Representatives, and shall thereupon be submitted to
the electors of the sevei-al States qualified to vote for the election of memljers of the
House of Representatives, not less than two nor more than three calen<lar months after
the passage through both Houses of the proijosetl law. The vote shall be taken in such
manner as the Parliament prescribes.

And if the proposed alteration is approved by the electors of a majority of the States,
and if the people of the States whose electors approve of the alteration are also a
majority of the people of the Commonwealth, the proposed alteration shall be pi-esented '
to the Governor-General for the Queen's assent.

But an alteration by which the proportionate representation of any State in either
House of the Parliament, or the minimum number of representatives of a State in the
House of Representatives, is diminished, shall not become law without the consent of the
electors of the State."

In Committee, Mr. Deakin moved the omission of the word " absolute," but this

was negatived. The time within which the vote might be taken was extended to six
months after the passing. Mr. Lewis pointed out that the population of the approving
Slate might be a majority of the Commonwealth, and yet the votes of a large majority
of electors might be against the proposal, and he suggested that the test should be, not
that the people of the approving States are a majority of the Commonwealth, but that
the electors approving are a majority of those voting. The difficulty, however, was that
w hilst one State had women's suSrage, and the others had not, the electors of that State
would count for twice as many as the electors in the other States. No solution being
suggested, Mr. Lewis' amendment was negatived. (Conv. Deb., Adel., pp. 1020-30.) At
a later stage, the difficulty as to women's suflFrage was met by the provision which now
forms part of the Constitution. Verbal amendments were also made. (Conv. Deb.,
Adel., pp. 1204-9.)

At the Melbourne session, a number of amendments suggested by the Legislatures
and by members of the Convention were negatived — including a suggestion by the

988 COMMENTARIES ON THE OONaTITUTION. [Set 128.

IcgiriatiTe AnenUr of Vi«tona tliat in case of a dtaagreanoit betvera the Hooaes, the-
ptopoaed ahcntian alioiiUI be lefencd to the peoples. (Coot. Dkeh., lldbi, pp^ 715-72.)
Vestad aacodnentB were made beiiare the fint fcpori and after the fourth report.

After the iaflnre ct the CoarcBtian KIl to recetre the «tat«totj Hialantj- in Kevr
Simth Wales, the tvo Houses <tf Fuiiament in that colony aiked for rrrnmiiilfratinm of
this danse, amon^ otibers, and made eertain wmaunwiidstions vUcfa have afacndj haca
set oat IfrngR 317, tmf€m.\. At the Preaiers' Oonfercnee, 1899, it was agreed to asKad
the danse to the form in which it now stands ; the ahcratiom being (1) the insertioB of
the third paiagrqih, proiidiii^ for a reference to the electors notwithstanding the dis-
agreement of one Hoose, and (2) the prorison against an amendment altering the fimita
of a State without its consent.

$ 481. *«Alteratu»L.'*

The Kitish Cottstitntion can be altctvd bj an Act of the British Fuiiament. In
fact it is sometimes hsrd to distii^aish between Acts paiiard bj the British FuiiameBi
(dating to amttcis of ordinary Irgidstion. and Acts passed by it rrrlsting to the Consti-
tntion. The Federal Piuliament^ howerer, is not anthorized to smmd the C«mstilmi<ai
of the Commonwealth. That Constitntian can only be Tsried in a special way and after
ewnpliance with eertain formalitaes and prereqvoaites. In like masmrr the Congress
of the United States is deprired of power to sawwd the American instramont of Gorem-
ment. The dunhility of a Federal I^egidatnre to alter the Federal Cunatitntion is one
of the organie featnics and a prominent characteristie of evcty federal syrtcm. If the
Federal Le^slstnre eoold chax^ the Gonstitiition it migbt trsusluim itaelf ftvm a
sabordinate law-making body into an o«)gsn of sorcxcign^ ; it mi^it destroy the fednal
system altogether, and sabstitnte a consolidated form of gorcmaaent. A Federal
legislatnre is a wmtre creatnre of the Federal Coostitntion ; it is a mri« inrtrament or
' serrant of a federal cwnmunity ; it is an agent, not a masto-. The Constitiitian is the
master of the Iq^idatBDre, and the commonitjfr itsdf is the anther of the CSonstitntian.
In this respect a federal legidatare diffiera fron a anpteme Irgwlainie like that of G^cat
Britain, whidi is the embodiment and tm^im-* of the mnmigfttj of the BHtirik natioCL
Sorere^ty resides in that person, or body, or da&B of peiauMS in whom is nhimatriy
rested the power to amoid a Coostitatian of Goremment.

" The test of the federal S|;stem lies in the principle lAat the central Goremment
cannot destroy nor modify the local, nor the local GormuBent the oentraL Now, this
relation betwieen central and local Goremment is inmoasible anleas both test npona
coaomon baas, ue., the co-ordination of these independent GovenoKnts as parts of »
haxmonioas political system leqniies an ofganiiation of the soivragn, the State,
distinct ftom and supreme over both." (Borgeas, Politica] Sc i. 141.)

In the Oonstitation of the Coanmonwealth of comae there is noabaolate auiieieig)Bty,
bat a Qmni'-sorereignty ahich re^dea in the people of the Commonwealth, who amy
eatress their will on eonstitatioaal questions throogh a majority <tf the electors TOting
and a majority ci the StiAesL No amendmoit of the Constitotion on be matiewjAamt
tije^gnanrgiGe-af 4fent dooUe iikajority— a majority within a sMJority. These aie
sslegnards nf-ctasary not only for the protectioD of the federal system, bat in order to
secure nwtvity of thoo^t in the consideratian and settksnoit of pn^Hnals leading to
•Organic diai^es. Theae safegnards hare been prorided, not in order to prercnt or
ind^nitdy resist change in any direction, bat in order to pieieut chaa^ bei^ made in
haste or by stealth, to encoarage pablic discossioa and to delay ehai^e nntfl there is
strong eridence that it is desirable, irresistible, and ineritableL

A Constitntian is a diarter of goremment ; it is a deed of trast^ containing eorenants
between the sovereign cwnmunity and its individnal units. Those eorensnta should not
be li^tly ur inconsiderately altered. At the same time a Constitntian which did not
contain prorision for its amendment with the derdopment, growth, and expanaiaa of
the commonity iriiich it is intended togorem, would be a moat inadequate and ioperfeet
deed of partnership. It wooM be doomed to collapae ignominioasly, and withowt hsf e

§ 4»L] ALTERATIOX OF THE CONSTITFTION. 9»

«i leeBtrtiimBkiai. It woald be boond to break beneath the preasate of
■ kiih it cooU not control or resist. A Constitatioa may be esH^ncd to • fi*iBS
«i^pai9B. & is Bot in the amtxmtt «tf a trrtDg orguoaiB. to teBaiM fiiiiiiiwHlj Ike ■•■•
lin^ jvmr to j«ar ami from agp to ige. ^ vitk iafiTidBal aaifeay ao witik wa^aamm,
r «i tbe Ikvsof Eift. Tha CitoiiilBiiiin of a natma jg Ag ontward and TJBtMa
1 of its natwiMil fife^ to tke pKbslioas of which tt DeeesBsrily re^KXuis.. Tk»
qaagj within any healthy organic stmctxire mui^t find vrent in change. Change •■■■■■•
external forms. The jxjwer in a progressive comm unity is never quxeseest or
iry.
These prino^pieB ive iBcontrovertible ; but: ac ctie same time ciie tendesej so cbaags
lie sendBmami to iwitiin whether it is proceeding in a aafe Ancftni. aaii if
t to goit ^m tondaa^ m tkft& Areetion. Where a commnnity is foonded oa a
:fc it a omShf fnr and xoMniBble that that compact should be protfected,
■ok tmtf ifiirifTt tihb dniBiB «f tkon- vhav jab to ilptmV it hf totatadBOBg lewahitinMij
ftujeito, tt iitiii Hjiiwr thr ririk of tbaof^itllBa* tnfcHag and AMKctinl csfazncBtoL
Tke CoaiiifcalaaM «f the Comnaonwealth has proriiied a aaiiAy-maHe m the sAs^e ot a
gmiHwiw d^Mig tiw fthnf! by which its am^plilicatim aad iwotliftfatMMe aHijhe ^ecteti,
hit iCa oae is aiadded with precaations, the wisdom and propriety of which claim
feiawiiTili eonaideration fro^ eveej rejecting mind. The provisions for the aiawidmaat
of Idbe Cmuatitution may he coamdoed mider the following separate headii^B : (I) altora-
taoBB wfaieh may be made, (?< initatiaa ei aiteiatiaBi^ (3> s^ecence of alterations to the
4dM&Bes» (4) presentation of proposed akaatHaa to theCcaeiaM-Ceaeral for the Qneen's
assent.

Aktekatkkss wbkb Mat bx Kjlbk. — The Cuiititiitifiwi ean be altered in a certam
■anner. Wbat is the Coastitation 7 What » an alteration ? The ConstitaftnK is that
fast of the Imperial Aet comprehended ia Claaae 9 and divided into chaptepsy parts^ and
•ectiaasy the ■^"<t««^r^ hecag aHaelietcd freaii I to 13A ladbHSTe. The Schedule also is a
pact o€ the Constita^ua. ChiHii ii I to 8 of the Iraperal ^et are not parts of the Consti-
tatioB, and cannot he eTliiiid eaeept h^ the Imperial P^irliament Every chapter, part,
■ectiaa, paragmfh, aad -mud m Claaae T\., exe^t Che nargiBal aetes,, is within the
ih iailJM rf " rlii Ci—ititaliiiwi" ■■d^gahjiwt toeotaia nmmSti eliiwiM, Ite whole of the
Cswrtftiil iiiii comes within reach of the aaHndfaiig poarar fiminlated in the lu>t aedtaon of
the iastrament. Now, an alteration meaae aay chaagt at the shape ef amySfcaftiana*
addEkioBBr omissions, or ■«iiiifiietiiiiw of oM matter tn the CaaetikatMA. IWoaUe
altnatiaaa auy be thus grooqped : —
(1.) 'BTSirnr of old matter :
(2.) AlditieB to oM matter :
(X) letradaetiQQ of new matter:
(4.) Sokftttation of new matter for old matter.
Hence it may be condnded that there is no limit to the power to amend the
Constitation, bnt that it can only be brought into aefci^ aeeording to certain modes
prescribed. We will eoarader the modes and csHfitiaaB of eonstitntional T^oxwa
farther ; aMaanthde it is essential to grasp the ajg^itfeeaea aad eomprehensiveaaB ef
the power itaelL For example, the Constitntioa caaid he aiBBMiad other b the
direction of ■Anagkheaaig or weakening the Federal Gimi iiiiaiiit ; itnia^lifcwiifim ft, hf
coafariageB il ana and additional powers ; weakening it, by ***""g. awaj poiaeia.
The Coastiintiai eoald be amendeii by reforming the stmctore of t&a FedenI Paifia-
ment and modi^rii^ the relation of the two Houses ; by increasing or diminishing the
power of the Semte in reference to Money Bills; by nna».lrhig the Senate sabjecfi to
^BBofetion at the same time as the Hoaee of BqeesestatiTes.. It is even eoafeeaded hy
some daring interpreters that the Constftntion couM be aaaided by aboGshing the
Senate. It could certainly be amended by remodelSag the Esaestive Department*
abolishing what is known as Responsible Government, and introiiacing a new system.

990 COMMENTARIES ON THE CONSTITUTION. [Sec. 128

such as that which prevails in Switzerland, according to which the administration of the
public departments is placed in the hands of officers elected by the Federal Legislature.
The Constitution could be amended by altering the teniire of the judges, by
removing their appointment from the F^xecutive, and authorizing the election of judges
by the Parliament or bj' the people. The Constitution could be amended in its most
vital part, the amending power itself, bj^ providing that alterations may be initiated by
the people, according to the plan of the Swiss Popular Initiative ; that proposed
alterations may be formulated by the Executive and submitted to the people ; that
proposed alterations may, w ith certain constitutional exceptions, become law on being
approved of by a majority of the electors voting, dispensing with the necessity of a
majority of the States.

Amendments of the Constitution would not necessarily be confined to the machinery,
organization, and operation of the Federal Government ; they might include changes of
functions as well as changes of structure. New powers and functions could be added,
or existing powers and functions could be withdrawn.

Nor is the scope of the amending power restricted to the structure and functions of
the Federal Government ; it extends to the structure and functions of the Governments
of the States. Indeed, nearly every extension of powers and functions granted to the
Federal Government would involve a consequential contraction of powers and functions
in the Governments of the States ; and if a constitutional amendment could so alter
the powers and functions of the Governments of the States, why should it not be capable
of dealing, if necessary, with the Constitutions and political organization of the States ?
We say " if necessarj^ ;" for the necessity may never arise ; but the dormant power is
there, and may be used in an extraordinary emergency, if the States neglect or refuse to
adjust their constitutional arrangements to harmonize with Federal developments and
requirements.

Amendments of the Constitution need not be limited even to the functions and
organization of Federal Government and of State Government. They might go further,
and embrace fundamental laws relating to the rights, privileges, immunities, and duties
of the people of the Commonwealth, placing them beyond the domain of Federal
legislation and equally outside the sphere of State legislation. The American Constitu-
tion contains a Bill of Rights. Neither Congress nor the Legislatures of the States
could interfere with or alter one jot or tittle of those fundamental rights. A resort to
such constitutional settlements is only justifiable when the ordinary organs of legislation
cannot be trusted to protect private rights and individual liberty. In America, of late
3'ears especially, there has been a strong disposition to load the State Con.stitutions with
laws which belong properly to the field of ordinary legislation. The reason assigned for
this procedure is, that private rights and individual liberty cannot always be safely
trusted to the legislatures of the States ; that some of those legislatures have at times
been so influenced by passion, prejudice, and corruption, or so controlled by combina-
tions of vicious men, that they have disregarded truth and justice. (Per Miller, J., in
the Savings and Loan Association v. Topeka, 20 Wall. (J63. See authorities on this
subject collected in Lefroy's Leg. Power, p. xlvi. ) But under iioi'mal conditions of
society a charter of government should not be encujnbered with matters of ordinary
legislation. It should deal only with subjects of vital consequence involving the
organization, continuity, and government of the nation. The legislative machine
should be left free and unfettered to grapple with problems as they arise in the changing
circumstances of the country.

Attention has been drawn to the alterations which may be made in the Constitu-
tion. These have been suggested, not as probabilities, but as possibilities, in order to
illustrate the potentialities of expansion and modification inherent in the Constitution.
Dr. Pomeroy's observations on the amending power in the Constitution of the United
States will bear application to the similar power in the Constitution of the Common-
wealth.

5 481.] ALTERATION OF THE CONSTITUTION. 991

"The result of this discussion is, that the People of the United States, by virtue
of their inherent absolute attributes as a nation, may, by following the order prescribed
in the Constitution, adopt any amendments thereto, whether such changes would enlarge
or diminish the functions of the general government, whether they would widen or
contract the scope of State legislation. Nay, it is possible that the idea of local self-govern-
ment, which underlies our present civil polity, might be entirely abandoned, and the
plan of complete consolidation substituted in its stead ; even a monarchy might be
reared in the place of the present republic. It is true that the people have placed an
almost insurmountable obstacle to such action on their part, for they have required a
species of unanimity as a prerequisite to a reconstruction which should destroy the
Stat€s as distinctive elements in our political organization." (Pomeroy's Constitutional
Law, p. 75.)

Restrictions ok the Amending Power. — It is now necessary to draw attention
to several restrictions on the amending power, a reference to one of which appears in
the above quotation from Dr. Poraeroy. They may be summarized thus : No amend-
ment :

(1) Diminishing the proportionate representation of any State in either House

of the Parliament (sees. 7, 24) ;

(2) Diminishing the minimum number of representatives of a State in the

House of Representatives (sec. 24) ;

(3) Increasing, diminishing, or otherwise altering the limits of a State

(sec. 123) ;

(4) AflFecting the provisions of the Constitution in relation to the foregoing

matters ;
may be carried, unless a majority of the electors voting in the State interested approve
of the proposed law. Hence an Original State cannot, without its consent, be deprived
of equal representation in the Senate, or of the minimum number of five Representa-
tives in the National Chamber. No State, without its consent, can suffer an increase,
diminution, or alteration of its limits.

The alteration of the Constitution in these respects is not prohibited altogether, but
is made subject to a three-fold assent : not only the assent of (1) the people of the nation,
and (2) the peoples of more than half the States, but also the assent of (3) the peoples of
States affected. Thus, for instance, an alteration abolishing the principle of equal
representation in the Senate, and substituting some other basis of representation, would
require the assent of the peoples of all the States whose power in the Senate might be
thereby reduced. This is what Dr. Pomeroy refers to when he says that in the United
States the people have placed an " almost insurmountable obstacle" to the abolition of
equal representation, by requiring " a species of unanimity as a prerequisite to a
reconstruction which would destroy the States as distinctive elements in our political
organization." (Pomeroy, Const. Law, p. 75.) This prerequisite is an obstacle, but not
an insurmountable obstacle, in the way of national consolidation. When the time
arrives for constitutional reconstruction, the people of the Commonwealth, the successors
of the original creators and authors of the Constitution, may be able to solve the problem
of securing acquiescence in any urgently required reform. If .unanimity cannot be
secured, there yet remains the possibility of resort to the Imperial Parliament for an
amendment of the Constitution, dispensing with the necessity for obtaining the consent
of all the States. Such a radical and drastic method of settling a deadlock, unsolvable
bj' the Constitution itself, could only be justified by the gravest considerations of a
most serious emergency. Dr. Burgess, referring to a similar provision in the American
Constitution, which secures the principle of efjual representation in the Senate against
amendment by "the sovereignty as organized within the Constitution," argues that this
restriction is confused and unnatural, and could not possibly stand against a determined
effort on the part of the sovereign body to overthrow it. " It is a relic of confederation,
and ought to be disregarded." It may be good political science now and in the future
that equal representation should prevail, but the amending power — the sovereignty
organized in the Constitution— must be the final judge of this. A Constitution which

992 C0MME:NTARIES on the constitution. [Sec. 128

undertakes to except anything from the sovereign power as organized in the Constitution
"invites the reappearance of a sovereignty back of the Constitution; i.e., invites
revolution." (Burgess, Pol. Sci. ii. 49.)

It must be remembered that these are but bare possibilities and remote con-
tingencies. At the present time and for an apparently indefinite period to come the
people of the Gommonvv'ealth, in the majority of States, will not feel inclined to interfere
with the principles of local liberty, local self-government, State autonomy, and State
individualitj', which pervade the Constitution. They will recoil from an Imperial policy
of consolidation and centralization, which would swallow up, absorb, and obliterate the
States. At the same time many profound political thinkers are of opinion that
federalism, in which there is one political State, one central government, and several
provincial governments, is but a transitory form of government, midway between the
condition of confederacy and that of a single sovereignty over a combined population
and territory.

" Its natural place is, in States having great territorial extent, inhabited by a
population of tolerably high political development, either in class or in mass, but not of
entirely homogeneous nationality in different sections. When these ethnical differences
shall have been entirely overcome, something like the federal system may, indeed,
conceivably remain, but the local governments will become more and mote administrative
bodies, and less and less law-making bodies. In fact, it looks now as if the whole
political world, that part of it in which the centralized form of government obtains as
well as that part still subject to the federal form, were tending towards this system of
centralized government in legislation and federal government in administration. I do
not feel sure that this is not the form of the future, the ultimate, the ideal form, at
least for all great States." (Burgess, Political Sci. ii. p. 6.)

Initiation of Amendments. —The Constitution specifies two methods by which a
proposed alteration may be launched. In the first place it may be formulated, and
passed on to the electors, by absolute majorities in both Houses of the Federal Parliament.
In the second place, if one House twice passes, by an absolute majority, a proposed
alteration, to which the other House on each occasion fails to agree, the proposed
alteration, with or without any amendments agreed to by both Houses, may be submitted
to the electors. This alternative method of originating an amendment was not in the
Constitutionasdrafted by the Federal Convention. Itwas recommended by the Conference
of Premiers, and was afterwards ratified by the people on the occasion of the second
referendum. It was designed to facilitate the amending procedure, and to deprive one
Federal Chamber of the power to unduly obstruct or delay the submission of a proposed
amendment to the people. The various successive stages in the second method are
substantially the same as those prescribed by sec. 57 as the earlier stages of a deadlock in
ordinary legislation, excej)t that they apply equally to both Houses. They may be
outlined, in their order of sequence, thus : —

(i.) Amendment proposed by an absolute majority of one House and not agreed

to by the other House :
(ii.) Interval of three months :
(iii.) Amendment again proposed by the first-mentioned House and again not

agreed to by the other House :
(iv.) Governor-General may submit proposed amendment to the electors in each

State.
Reference to the Electors. —When a proposed amendment has been passed by
the two Federal Houses, or when it has been passed twice by one Federal House, with
the interval and in the manner prescribed, the procedure then assumes a form unknown
in matters of ordinary legislation. It becomes the duty of the Executive Government
to submit the proposed amendment to the popular vote throughout tlie Commonwealth,
and it cannot l)ecome law unless it is approved by a majority of the electors voting and
by a majority of the States. This means a double majority. In the first place more
than half the electors voting must vote "yes ;" in the second place, separate majorities

§ 481.] ALTERATION OF THE CONSTITUTION. 993

in more than half the States must vote " yes." If the proposed law does not secure this
double majority it fails.

The preparation of a proposed amendment, and its approval by an absolute majority
of members in each of the Houses, or by an absolute majority of members twice in one
House, is merely a preliminary act in the amending procedure. The principal element
in the process is the submission of the proposal to the electors. This process is a
concrete exemplification of the political expedient, formerly kno^vn as the Plebiscite,
now better known as the Referendum. It is an undoubted recognition of the qualified t^
electors as the custodians of the delegated sovereignty of the Commonwealth. The
qualified electors represent the people of the Commonwealth, as a giiaM-soveteign State,
in gwcwt-sovereign organization The requirement of the approval of a majority of the
electors and a majority of the States is the method imposed by the Constitution for
ascertaining the will of the people of the Federal Commonwealth. If a majority of the
States had been ignored, the federal element in the structure of the Commonwealth
would have been impaired and whittled away. In a unified community it would be
sufficient if a majority of the people sanctioned a re\ision of the Constitution In a
federal community, in which the National and State elements co-exist, a modification of
tlie fuudamental law, without the approval of both the people and the States, would be
unjust and repugnant to the whole scheme of government. (Deploige, Referendum in
Switzerland, 1898, 136.)

"The law of the Constitution must be either legally immutable, or else capable of
being changed only by some authority above and beyond the ordinary legislative bodies,
whether federal or state legislatures, existing under the Constitution." (Dicey, Law of
the Const, p. 134.)

" The principle of that science is that the undoubted majority of the political people
of any natural political unit3' possess the sovereign constituting power, and may as truly
act for the whole people in building up as tearing down ; more truly, in fact, for in
political science the only purpose of tearing down is to secure a better building up
of the whole structure." (Burgess, Political Sci. i. 107.)

The time may come when the national element, the people, may become so strong as
to disregard and overshadow the federal element, the States. An amendment of the
Constitution may then be projected and carried, abolishing the necessity of the second
majority. When that is done the Commonwealth will probably cease to be a Federation
and will be converted into a State, national in form and structure and national in
organization. It is remarkable that whilst the abolition of equal representation of
original States in the Senate, without the consent of those States, is prohibited, there is
no prohibition of an amendment sweeping away the requirement that the assent of a
majority of States is necessary to the adoption of amendments.

Presestatiok to the GovERyoK-GEyERAi.. — If, in a majority of the States, a
majority of the electors voting approve the proposed law, and if a majority of all the
electors voting also approve the proposed law, it must be presented to the Governor-
General for the Queen's assent. When this section was drawn by the Federal Convention,
it was based on the assumption that both Houses would concur in passing the proposed
amendment ; that if the proposed law were approved by the statutory majority of
electors and of States, it would be presented to the Governor-General for the Queen's
assent ; and that it would then be assented to b\' the Queen as a branch of the Federal
Parliament. The insertion of the provision enabling one House to draft an alteration,"'^
and submit it to the people, emphasizes the fact that the Houses of Parliament, inV
respect of alterations of the Constitution, are originating and drafting bodies merely, /
and not the principal legislative organ. '

An alteration thus launched by one House and then carried through the subsequent
stages would assume the special form of a law passed, say, by the House of
Representatives, approved by a majority of the people and a majority of the States, and
assented to by the Queen. Tlie other branch of the Federal Parliament would be no
party to the Legislative Act. No doubt the law would have to be officially authenticated
63

994 COMMENTARIES ON THE CONSTITUTION. [Sec. 128

in a special manner, certifying compliance with the constitutional requisites, similar to
that in which amendments of the American Constitution are verified and promulgated.
In that country the practice is that whenever official notice is received at the
Department of State that any amendment proposed to the Constitution of the United
States has been adopted according to the provisions of the Constitution, the Secretary
of State forthwith causes the amendment to be published in the official newspapers, with
his certificate that it has become valid, to all intents and purposes, as a part of the
Constitution of the United States.
I The necessity of the Queen's assent is a sufficient guarantee that amendments will not

' be made inconsistent with the supremacy of the Imperial Parliament. It is not likely
that the Crown would interpose its veto to prevent the adoption of amendments I'espect-
ing which there was no question of Imperial or international policy involved. Questions
of local expediency would no doubt be left to the decision of the people and the States
of the Commonwealth ; whilst questions of constitutionality could, with equal safety,
I be allowed to be settled by the Federal courts.

Limits of the Amending Power. — There^reno^sge^ficjimitations upon the scope
of the amending power. No part of the Constitution is excluded from the possibility of
amendment ; though amendments of a certain kind require a " species of unanimity "
which makes such amendments very difficult. The power of amendment, therefore,
extends to every part of the Constitution — even to sec. 128 itself, which defines the mode
of amendment.

\ If therefore the Commonwealth were a sovereign and independent State, no amend-
( ment, duly passed in the prescribed form, would be beyond its powers ; the amending
power would have no limits. But the Commonwealth is only gwa-sj-sovereign, and the
amending power, though above the State Governments and above the Federal Govern-
ment, is below the Imperial Parliament. The Commonwealth is a dependency of the
Empire ; and the amending power — the highest legislature of the Commonwealth — is a
colonial legislature. It can therefore pass no law which is repugnant to any Act of the
British Parliament extending to the Commonwealth, or repugnant to any order or
regulation founded upon such Act ; and on the other hand no law passed by the amend-
ing power will be void on the ground of repugnancy to the law of England unless it is
repugnant to the provisions of some such Act, order, or regulation. (Colonial Laws
Validity Act, 1865 [28 and 29 Vic. c. 63, sees. 2-3].)

I In particular, no law can be passed by the amending power which is repugnant to
the Commonwealth of Australia Constitution Act— consisting of the preamble and the
covering clauses to which the Constitution itself is annexed. The amending power can
^mend the Constitution, but the Constitution Act is above its reach. How far the scope
of the amending power may be limited by the scope and intention of the Constitution
Act, as gathered from the preamble, it is impossible to say ; but it is certain that, if
amendments ,vere passed which were inconsistent with such words as "indissoluble,"
'. "Federal Commonwealth," or " under the Crown," strong arguments would be available
' against their constitutionality. (See Notes on " Preamble," supra.)

The American Method of Amendment. — It may be useful to compare the
amending procedure provided by this Constitution with that of other federal systems.
In the Constitution of the United States, two methods of originating amendments are
provided, and there are also two methods of enacting amendments, wlien so originated.
In the first place. Congress itself may, by a two-thirds majority in each House, draft
and propose amendments; in the second place the legislatures of two thirds of the several
States may apply to Congress to call a convention for the purpose of proposing amend-
ments On all occasions, up to the present, on which the amending power has been
brought into action, the first method only has been emploj'ed for the purpose of proposing
amendments When amendments are proposed by Congress, or by a constitutional
convention, they have to l)e submitted to the States, and ratified in three-fourths of tlie
States, either by the State legislatures or by State conventions specially elected in each

§ 481.] ALTERATION OF THE CONSTITUTION. 995

State for the purpose. The first method of ratification is the only one which up to the
present has been resorted to. From this summary of the American amending procedure
it will be observed that the facilities for altering the Constitution of the Commonwealth
are much greater than those for altering the American Constitution. In regard to
origination, an amendment ma\' be proposed by an absolute majority of one House of
the Federal Parliament, whilst a two-thirds majority in each branch of the American
Congress is required. In regard to ratification, whilst in the Commonwealth a majority
of the people voting and a majority of States is sufficient to carry an amendment, in
America it must be passed by the legislatures or by the conventions in three-fourths of
the several States.

The Swiss Method of Amesdmest. — In the Federal Republic of Switzerland
there are several methods by which revisions of the Constitution may be originated and
ratified. A total revision of the Constitution may be brought about in three ways :
(1) The National Council and the Council of States may agree to an amendment, as in
the ease of an ordinary federal law. The Constitution, as drawn up by the two Councils,
must then be submitted to the popular vote, and if it is approved by a majority of the
people and by a majority of the Cantons, it becomes law. (2) If one Chamber votes for
a total revision and the other refuses its assent, the question is then submitted to the
electors in each Canton, "Do you wish the Constitution to be revised — Yes or No?'
If the majority of electors vote " Yes " in support of a revision, the two Chambers
are then dissolved, and a new Federal Parliament is elected charged with the work of
revising and drafting a new Constitution. When this has been prepared, it is submitted
to the popular vote, and if it is approved by a majority of the people and by a majority
of the Cantons it becomes law. (3) If 50,000 citizens sign a petition in favour of a total
revision of the Constitution, it is the duty of the Executive to submit the question to
the electors, " Do you wish the Constitution to be revised — Yes or No ?" If a majority
of the electors decide in favour of revision, the Federal legislature has to carry out the
popular wish, and rcNise the Constitution for submission to the people. If on such
submission it is approved by the required double majority it becomes law.

There are two methods by which a partial revision or a partial amendment of the
Swiss Constitution may be brought about. An amendment may be proposed bj' the two
Federal Chambers, as in the ordinary process of legislation. It must then be submitted
to and accepted by a majority of the people and by a majority of the Cantons. A
demand for the adoption of a new article, or the alteration of an old one, may be made
in writing bj' 50,000 S^viss citizens in the same way as a demand for a total revision.
If the Federal legislature agrees with the demand of the petitioners it proceeds to
formulate the required amendment and prepare it for submission to the people. If on
the other band it disagrees with the demand the question is submitted to the people,
" Are you in favour of a revision of the Con^itution — Yes or No ?"' If a majoritj' of
the people decide in favour of a revision it becomes the duty of the Federal I.«gislature,
acting as a Drafting Committee, to prepare the required amendment for submission to
the people. It is then submitted to the popular vote, and if it receives the support of
the required statutory majority of people and of Cantons, it becomes law. The final
referendum is obligatory in every proposal to amend the Constitution. (Deploige, Ref.
Switz. pp. 128-131.)

INDEX.

[Note. — The references are to the pages.]

Aborigrinal natives, 983. Not to be
counted in reckoning population, 982.

Absence vacates seat in Senate, 442 ;
in House of Representatives, 481.
Of President of Senate, 441. Of
Speaker, 480.

Acquisition of property by Common-
wealth, 640 ; compensation for, 641 ;
purpose of, 642. Of State railways,
643. Of territory for seat of Govern-
ment, 979. See Eminent Domain.

Admiralty and maritime jurisdiction,
matters of, 797. Jurisdiction of
State Courts, 798. Original Juris-
diction of High Court, 799.
Jurisdiction in England and
America, 800.

Affirmation of allegiance, 488,

Agent-General, office of, 632.

Agreement with public service, dis-
qualifies for Parliament, 491, 493.

Aliens, federal poAver as to, 599. Im-
perial legislation as to, 600. See
Naturalization, Immigration.

Allegiance, oath or affirmation of, 487.
Foreign, 490, 491.

Allowance to members of Federal
Parliament, 499.

Amendment of the Constitution, subject
discussed at 1891 Convention, 135,
141 ; at Adelaide session, 171, 180
demands of N.S.W., 217, 220,
Power of, 984 ; what it includes, 988
restrictions on, 990 ; limits of, 993
Initiation of amendments, 991
reference to electors, ih. ; presenta-
tion for assent, 992. Of a Federal
Constitution, 316-9, 987- Of the
American Constitution, 993 ; of the
Swiss Constitution, 994.

America, colonization in, 6-23. Dis-
coveries, 8. First English colonies
in, 9. See United Staten.

Appeals, 740. Of right and of grace,
746. Alternative, from State Courts
to High Court or Privy Council, 738,
742, 752, 760-1. To Privy Council,
by special leave, 750 ; when granted,
752. Upon constitutional questions,
753-60. See Hiijh Court, Queen in
Council.

Appropriation, for ordinary annual
expenses, 669, 814 ; for extraordinary
expenses, 670 ; permanent or special,
670, 814. Votes, &c., for, must be
recommended by Crown, 679. For
the purposes of the Commonwealth,
812. Must be by law, 814. Pro-
cedure for, 815.

Appropriation Bills, 662, 673, 679.

Must not originate in Senate, 667 ;
exception as to bills incidentally
appropriating, ib. ; whether such
bills need message. 682. Recom-
mendation by Crown, 679.

Ordinary Annual, Senate may not
amend, 669 ; but may suggest amend-
ments, 671. Shall deal only with
appropriation, 673.

Arbitration. See Conciliation.

Astronomical and meteorological
observations, federal power as to, 566.

Audit, application of State laws as to,

872.

Australasia, early discoveries in, 23.
Cook's discoveries, 26. Origin of
name, 33. See Ati-stralia.

Australia, discovery of, 23. Projects
for settlement of, 29. Exploration
of, 30. Origin of the name, 33.
Sub-division of, 79.

Australian Colonies Government

Act, 86. Despatch accompanying,
87. See Table of Statutes (13 and
14 Vic. c. 59).

Australian Natives' Association,

150, 153. List of members oi Inter-
colonial Conference of 1890, 253.
Presidents of, 254.

Banking, federal power as to, 576 ;
State banking 577.

Bankruptcy and Insolvency', disquali-
Hcation by, 490. Federal jwwer as
to, 586 ; is concurrent, 587. Ameri-
can cases, 587 ; Canadian cases, 588.
Imperial laws in the colonies, 592.
Colonial laws, ib.

Banks, incorporation of, federal power
as to, 578. See Banking.

Barton, Mr. Edmund, forms Federation
Leagues, 151. Leader of Conven-
tion, 166. Leads '* National Federal
996

INDEX.

997

Party" in N.S.W., 215. Spokes-
man of delegation to England, 228.

BathUPSt, People's Federal Convention,
IBS, 168. List of members of, 257.

Beacons and buoys, historj' of provnsion
as to, 85, 91, 94, 565. Federal power
as to, 565. Transfer of department
of, 714. Powers of States as to, 853.

Berry, Sir Graham, 107, 109, 110.

Bicameral system, 386-7.

Bill. See Proposed law.

Bills of exchange are instruments of
commerce, 517. Federal power as
to, 585.

Book-keeping sj-stem of distributing
revenue, 176, 197 ; before uniform
duties, 833 ; for five years after-
wards, 860.

Borrowing on the credit of the Com-
monwealth, federal power of, .588 ;
exclusive, 656.

Boundaries. See Limits.

Bounties, Victorian objections to clauses
dealing with, 211 ; Federal legislative
power as to, 556 ; becomes exclusive,
557, 824, 837. Control of the pay-
ment of, 823. Grants of and agree-
ments for, by States, 557, 838 ; when
deemed to be good, 839. State laws
offering, 557, 824. Powers reserved
to States, 558, 841 ; to grant bounties
on mining for metals, 824, 842 ; or
with the consent of the Federal Par-
liament, 824, 843.

" Braddon clause," The (sec. 87),
historv of, 177, 198. 207, 214, 215,
221. Notes on, 824-9. Bearing of
financial assistance clause on, 871.

Bridges, federal power as to, 517, 530-2,
884. State power as to, 534, 542,
858, 885. See Rivers.

Buoys. See Beacons.

Cabinet, The, 382, 703, 71 1. See
Responsible Government.

Canada, settlement of, 17. Conquest
of, 20. Upper and Lower, 22.
Dominion of, 23. Commerce power
in, 542, 544. See Table of Statutes
(30 and 31 V^ic. c. 3).

Canals within State, 542.

Capital, Federal. See Seat of Govern-
ment.

Census, federal power as to, 572.

Citizen, defined, 491, 776. History of
word, 955. Of foreign power, dis-
qualified for Parliament, 491. Of a
State, 776. Corporation is not, 777.
Of the Commonwealth, 449 ; not
defined, 956. Of the United States,
ih. See Subject, Resident.

Civil Servants. See Officers.
Coinage, federal power as to, 573.
Prohibited to States, 575, 950.

Colonial Boundaries Act, 378-9. See
Table of Statutes (58 and 59 Vic. c.
34).

Colonial Laws Validity Act, discus-
sion with Imperial Government as
to, 229-245. Notes on, 347-352
See Table oj Statutes (28 and 29
Vic. c. 63).

Colonies, ancient, 1-5. Modem, 6-34.
Spanish and Portuguese, 6. Foun-
dation of English-American, 9 ; their
classification, 15. West Indian, 17.
Canadian, ib. South African, 19.
Britain's second colonial Empire, 22.
Greater Britain, 33. Government of
British, 308. Are not " States," 369.
Australian, description of, 373 ;
certain powers of authorities in, to
vest in similar authorities in Common-
wealth, 716. See States.

Colonization. See Colonies.

Command - in - chief of naval and

military forces, 713.

Commerce. See Trade and Commerce.

Common law, federal jurisdiction as
to, 785, 809 ; in criminal cases, 785 ;
in civil cases, 788.

Commons, House of, 305-8.

Commonwealth, adoption of the word
by the 1891 Convention, 131, 136,
184. Inauguration of. 252. Mean-
ing of the word, 311-4. Secondary
meaning, 368. Parts of, 354, 372.
Nature of, 366-8, 371. Quasi-
sovereignty of , 368, 927. Alteration
of limits of, 378. Organization of,
380. Suits by or against, federal
jurisdiction in, 772. Power of
Parliament to grant rights of
proceeding against, 806. States
may not tax property of, 948.
People of, 449, 957.

Commonwealth Bill, of 1891, 115-43;
fate of, 14:3-150. Of 1898, 165-206
(see TaMe oj Contents). Of 1899,
218-228 ; adoption of, 221 ; enact-
ment of, 228-49. See Constitution.

Companies. See Corporatiom.

Compensation for acquisition of pro-
perty, 641. For property of trans-
ferred departments, 821. For
resumption of property for seat
of Government, 981.

Conciliation and arbitration, extending
beyond limits of a State, federal
power as to, 645.

Concurrent powers of States, 509, 656,
934.

Confederacy, meaning of, 334, 371.

Conferences, Intercolonial, 103 ; Con-
ference of 1880-1, 107 ; of 1890, 119 ;
atCorowa, 152 ; Premiers' Conference
of 1895, 159 ; of 1899, 218 ; of 1900,
236. Conference between Colonial
Office and Delegates, 234.

998

TNDEX.

Conservation of waters of rivers, 893.
See Watera.

Consolidated Revenue Fund, 665, 812.

Constitution, defined, 314-20. Of the
Commonwealth, materials for, 131,
135. Mode of submission to the
people, proposed in 1891, 142; under
Enabling process, 153-4,158. Refer-
endums upon, 206, 222. Enactment
of, 228-249. " Under the Constitu-
tion," 300. Commencement of, 344.
Organization of the Commonwealth
within, 380. Jurisdiction in matters
arising under, 790. Interpretation
of, 791.

Constitutions of States, continue sub-
ject to the Federal Constitution, 929.
See States.

Consuls, federal jurisdiction in cases
affecting, 771.

Consumption, goods passing into a
State for, 862.

Contempt, power of colonial legislature
to commit for, 506.

Contracts, in restraint of trade, may be
regulated under commerce clause,
538. Commercial, whether included
in commerce, 543, 585.

Convention, of 1883, llO. National
Australasian, of 1891, 123; members
of, 254. National Australasian, of
1897-8, election of, 163 ; members of,
260 ; Adelaide session, 165 ; Sydney
session, 187 ; Melbourne session, 194.

Corowa Conference, 152. List of mem-
bers of, 255.

Corporations defined, 578. Residence
of, 777. Foreign, trading, or finan-
cial, formed within territorial limits,
federal power as to, 604.

Courts, Federal. See High Court, In-
ferior Courts, Justices.

Of the States, Parliament may in-
vest with federal jurisdiction, 727,
803 ; appeals from, to High Court,
742 ; conditions and restrictions,
747 ; appeals from, to the Privy
Council, 738, 742. See Queen in
Council.

Covering clauses, 131. Dealt with by
Imperial Parliament, 229-232, 235,
239. Notes on, 311-383.

Criminals, laws preventing influx ^ of,
629. See Fugitive Offenders.

Crown, provision that the Common-
wealth Act should bind, 229, 320-2.
" Under the Crown," 294-6, 367. In
Parliament, 308. Remedies against,
805. See Queen, Prerogative, De-
mise of Croion.

Currency, federal power as to, 572.
Imperial control, 575. See Coinage.

Customs and Excise, collection and

control by Commonwealth, 133, 823.
Return to States of three-fourths of
net revenue from, 824 (see Braddon
clause). Exclusive power to impose,

837. State laws imposing, to cease,

838. See Customs duties, Excise duties
Customs duties, laws imposing, shall

deal with customs only, (i74. Legality
of collection after resolution propos-
ing, 506. Uniform, 550, 829. Must
be imposed within two years, 830.
Defined, 837. On goods • ' loaded up "
before uniform tariff, 859. Wes-
tern Australia may impose inter-
colonial, for five years, 865. See
Customs and Excise.

Dams. See Rivers.

Deadlocks, debates at Adelaide session
as to, 167, 180. Suggestions of Par-
liaments, 183, 186. At Melbourne
session, 202. Demands of N S.VV.,
216. Amendment by Premiers, 218.
See Disagreement.

Deas-Thomson, Sir Edward, 80, 82, 93.
His Select Committee on Federation,
96, 97, 106. His tariff, 100.

Debts of the States, debates as to taking
over, 133, 140, 171, 178, 183. Power
to take over, 922. Existing at estab-
lishment of Commonwealth, 924.

Decision of High Court upon a constitu-
sional question, 754. See Appeals,
Queen in Council.

Defence, Australian, 49, 111. Assumes
prominence, 115. Reports of Sir W.
D. Jervois and Sir P. Scratchley, 1 15,
562. Australian Naval Force Acts,
116, 562. Report of Major-General
Edwards, 117, 562.

Federal power as to. 561. Duty to
protect States, 565. Control of rail-
ways for, 642. Command-in-chief of
forces, 713. Transfer of department
of, 714.

Definitions, 364-6.

Demise of Crown, 461. Does not dis-
solve Federal Parliament, 464.

Departments transferred, legislative
power as to matters incidental to
powers of, 655 ; exclusive powers as
to matters relating to, 660. Transfer
of, to Commonwealth, 714, 718, 787.
Revenue and expenditure of, 715.
Officers of, 817. Transfer of property,
820.

Federal, Governor - General mav
establish, 709. Ministers shall ad-
minister, ib.

Designs, patents of, federal power as to,
598.

Development, rates necessary for, 920.
See Railiuay rates.

INDEX.

999

Disagreement between the Houses,
684, 687. Double dissolution, 6^5.
Joint sitting, 686 ; does not enable
Senate to amend money bills, 687 ;
absolute majority, 687. See Dtad-
locki*.

Disallowance of laws by the Queen,
(59-2. 764.

Discretion, judicial, 759. Of High
Court, to certify that appeal to Privy
Council is proper, 759.

Discrimination in taxation 550 ; in
commerce, 912. What is, a question
of law, 745. Definetl, 912. By a
State against residents of other
States, 953, 960. See Prtfertnce.

Disqualifications of members of Par-
liament, 489. Penalty for sitting
when disqualified, 495.

Dissolution. See House of Representa-
tives, Disagreemtnt, I^rerogative.

Distance, measurement of, 793 ; of seat
of Government, 981,

Divorce, federal power as to, 609.

Due regard, a question of fact, 745, 918.
To tinancial responsibility of States,
917.

Duffy, Sir Charles Gavan. First Select
Committee on Federation, 95, 97 ;
second and third, 98 ; fourth, 101.
Royal Commission, 106.

Elections of Senators, laws prescribing
method of, 425. Times and places
of, 427. Application of State laws
to, 427. Writs for, 429. Triennial,
430. For casual vacancies, 434.

Of members of the House of
Representatives, application of State
laws to, 471. Writs for, 472.

General, time for summoning
Parliament after, 409. Trial of
disputed, 495.

Electorates, for Senate, 419 ; in
Queensland, 421. For House of
Representatives, 465.

Electors of Senators, qualification of,
423 ; shall vote only once, 424. Of
members of the House of Representa-
tives, qualification of, 467 ; shall
vote only once, 470. See Franchise.

Emigration, federal power as to, 629.

Eminent Domain, federal power of,

640. Over shores and submerged
soil, 883. See Acquisntion.

Established, meaning of, 301, 343-4.

Exceptions to appellate jurisdiction of
High Court, Parliament may pre-
scribe, 738. From a power, mark
its extent, 796.

Excise duties, laws imposing, shall
deal with excise only, 674. Defini-
tion of, 837, 854. Must be uniform,
550, 829. Effect on commercial

freedom of exclusive power as to,

8;54. See CxiMonia and excise.

Exclusive power, how far commerce
power is, 527, 530, 657. How far
taxing power is, 551. Nature
of, 656, 838. Commencement.' of,
656. Effect on State* laws, 657.
Over seat of Government, 658, 981.
Over places acquired by the Com-
monwealth, 659. Over matters
relating to federal departments, 660.
Matters declared to be within the,
661, 933. To impose customs and
excise duties and grant bounties, 837.

Execution of process of State courts,
federal power as to, 616.

Executive Government, resolutions

at 1891 Convention, 125. Notes on,
699-718. Defined, 699. Nationalism
of, 700.

Executive power of Commonwealth,
655, 701. Vested in Queen, 702.
Exercisable by Governor-General, ib.
Extent of, 699. Distinguished from
judicial, 720. Of the States, 931 '2.

Expenditure of Commonwealth, ap-
portionment of, 134, 139, 169 ; before
uniform duties, 834 ; for five years
after, 861 ; ultimately, 864. Charged
on revenue, 813. Preliminary, mth-
out appropriation, ib. Of Senate
elections, 422, 815.

Exportation, when it begins, 845.
Meaning of, 943.

External affairs, federal power as to,
631. Representation by Agents-
General, 632. Commercial treaties,
633. See Extradition.

Extradition, inter-state, 619. Inter-
national, 635. Imperial Acts relat-
ing to, 6:i5. Treaties, 770.

Extra-judicial opinions, 765. In Eng-
land, United States, and Canada,
766. In the Commonwealth, ib.

Extra-territorial operation of laws,

354-5 ; of fishery laws, 539 ; relations
with islands do not involve, 637.
Service and execution of process,
federal powers as to, 614, 616.

Fact, questions of, 743 ; reasonableness,
due regard, &c., are, 745, 915, 918.

Faith and credit to laws of States,

federal power to enforce, 620 ; must
be given throughout the Common-
wealth, 961.

Fares. See Freights, RaUxcay rates.

Federal, meaning of word, 332-42.
Federal and national elements in the
Constitution, 334. Form of the Com-
monwealth, .367. "Federal State"
and " Federal Government," 333,
369. Movement, the, 79-252. See
Table of Contents.

1000

INDEX.

Federal Council, Bill of 1867, 104.

Pai'kes' resolutions in favour of, 107.
His memorandum and Bill, 108.
Federal Council Bill, 111. Addresses
adopting, 112. Passed by Imperial
Parliament, 114. Laws passed by,
115, 377 Inadequate for defence,
118. Repeal of Act, 376. Powers
exercisable by, federal power in
respect of, 65 1 .

Federal Executive Council, constitu-
tion of, 703. Distinguished from
Cabinet, 704, 711. Ministers of
ytate must be members of, 708. See
Ministers of State, liesponsible
Government.

Federation Enabling- Acts, history of,

153, 160. Amending Act of 1897 in
N.S.W, 194. Acts of 1899, 221-3.
Queensland Act, 223. West Aus-
tralian Act, 249.
Federation Leagues, 151, 153, 154,207.

Fees for licenses or services, imposition
or appropriation of, 668. Taken by
member of Parliament for services,
vacates his seat, 494.

Fiji, represented at "Convention" of
1883, 110. Adopts Federal Coimcil
Bill, 112. Joins Federal Council,
114, 115. Description of, 376.
Proposal for federation with New
Zealand, 639-40.

Final and conclusive, judgments of

High Court are, 746. Prerogative
right of appeal not affected, ib. See
High Court, Queen in Council.
Finance, federal, debates in 1891 Con-
vention, 133, 139 ; in Adelaide
session, 169, 176. Suggestions of
Legislatures, 182, 186. Debates at
Sydney session, 188; at Melbourne
session, 197. Objections to Bill, 206.
Investigated by a Commission in
N.S.W., 209. Demands of N.S. W.,
217, 219. See Expenditure, Revenue^
Braddon clause, Debts, Ouarantees,
Book-keeping.

Financial assistance to states, 219,

868. Federal power to grant, 870 ;
effect of Braddon clause on, 871 ;
conditions of, ib.

Fines. See Penalties.

Fisheries, extra-territorial, power of
Federal Coimcil as to, 111 ; laws
passed by Federal Council, 115, 377,
570 ; federal power as to, 568.
Within State limits, State power as
to, 854.

Fitzroy, Governor Sir Charles. Sug-
gests a central functionary for
Australia, 80, 81. Appointed Gov-
ernor-General of Australia, 89.

Forces, States may not raise or maintain
without consent of Federal Parlia-
ment, 948.

Franellise, federal, discussed at 1891
Convention, 137 ; at Adelaide session,
1 73. Is a matter of national concern,
468. Otherwise in the United
States, ib.

In the several States, 469. Adult
electors of States entitled to vote at
federal elections, 483

Freetrade, intercolonial, early attempts
at, 79, 100. Inter-state, laws dero-
gating from, 135, 171, 199. To begin
on imposition of uniform duties, 845.
Exception as to goods previously
imported, 858. Exception as to
Western Australia, 198, 865. See
Tarifs.

Freig-htS and fares. State regulation of
domestic, 520. Federal regulation
of inter-state, 520. State tax on,
532, 855 See Railway rates, Inter -
State Commission.

Fugitive Offenders, colonial legisla-
tion as to, 617 Imperial legislation,
618 Inter-state extradition of, in
America, 619.

Game laws, State power as to, 854.

Gillies, Mr. Duncan, 110, 117, 118, 119,
120.

God, recognition of in Preamble, 204,
283, 287-90, 952.

Government defined, 315. 317-9. Con-
trasted with State, 367. Tripartite
division of, 381, 699, 719.

Governor of State, appointment of,
141,171 ; communication with Queen,
141, 171 ; provisions referring to,
939.

Of colony, office of, 388 ; tenure,
389. Powers and appointment, ih.
Commission, ib. Responsibility, 393.
Canadian Letters Patent and Com-
mission, 395. Higinbotham's criti-
cisms of old Instructions, 396. New
Instructions, 398. Special Instruc-
tions, 400. Certain powers of, to
vest in Governor-General, 716.

Governor-General, of Australia, ap-
pointment of Sir Charles Fitzroy aa,
41, 89.

Of the Commonwealth, first ap-
pointment of, 251, 342-3. Office of,
387-8. Term of office, 389. Sala,ry
of, 400. Provisions relating to, in-
clude Administrator, 402. Salary
of Administrator, 403. Statutory
powers of Govornor-Genercal, 404,
717 ; of Governor-General in Council,
405, 707, 717. Presentation of Bills
to, for assent, 688. May recommend
amendments, 691. Executive power
exercised by, 702. In Council, re-
ferences to, 706. To be Com-
mander-in-Chief, 713. Certain powers
of State Governors to vest in, 716.
May be authorised by Queen to
appoint deputies, 982.

INDEX.

1001

Grey, Earl, his project for federal
union, 81 ; failure of, 88. Creates
office of Governor-General, 41 , 89.

Griffith, Sir Samuel, devises Federal
Council Bill, 111. Chief draftaniau
of 1891 Bill, 130. Criticizes pro-
posed appeal clause, 246.

Guarantee of State finances, debates as
to, 140, 170, 177, 18;j, 197. Effect
of Braddon clause, 825-8. Effect of
" financial assistance " clause, 870.

Haldane, Mr. R. B., proposal as to
Imperial Court of Appeal, 231.

Harbours. See Ports. '

High Court, its establishment man-
dator}', 723. Both a federal and a
national court, 724, 737. Guardian
of Federal and State Constitutions,
725. Original jurisdiction of, 724,
764, 784 ; additional may be con-
ferred, 789. Appellate jurisdiction
of. 724, 7.34, 784 ; from State Courts,
not exclusive, 738. Its decisions
"final and conclusive," 746 ; subject
to appeal by special leave of Privj-
Council, 746 ; or of High Court in
certain cases, 748.

House of Representatives, 445-83.

Adoption of word, 131. A national
chamber, 4-t8. Compared with
House of Commons, ib.

Duration of, 168, 461. Minimum
representation in, 133, 168, 455.
Dissolution of, 404, 407, 464.
Electors of, 449. Number of
members, 450 ; at first election, 456 ;
alteration of, 460 ; apportionment
of. 453 ; ascertainment of quota, ib ;
pro\nsion as to disqualified races,
4.55. Electoral divisions for, 465.
Qualification of electors of, 467.
Qualification of members, 474 ;
whether women qualified, 475.

Quorum of, 482. Voting in, 483.
Resignation from, 481. Vacancy
by absence, ih. See Klections.

Immigfratlon, federal power as to, 623.
International, political, and legal
aspects, 623-4. Restrictive laws,
624 ; as to Chinese, t6. ; as to
Asiatics, 626. Natal Act, 627.
Legislation in Canada, ib. ; in
United States, 628. Assisted
immigration, 629. See Aliens.

Immunities, Parliamentary, 502. 507.
Of people of Commonwealth and
States, 958. See Privileges.

Implied powers, development of, in
United States, 582, 651. Of Federal
Parliament, 6.52. Implied restric-
tions, 796.

Importation, when complete, 846, 859.
Meaning of, 859, 943.

Incapacity, judicial, 731.

Incidental matters, legislative power

as to, 6.')1. See Implifd Powers.
Incorporation. See Corporation,

Banks.
India, British possessions in, 18. See

ColonieJi.
Indictment, 808 ; trial on, most be by

jury, ib.

Indissoluble. Commonwealth declared
to be, 292-4.

Infants, custody and guardianship of,
federal power as to, 612.

Inferior courts. Parliament may
create, 725 : and define their juris-
diction, 726. Appeals from, 726,
742. See Judges.

Injunction, 783. Against an officer of
the Commonwealth, ib.

Insolvency. See Bankruptcy.

Inspection laws, 943. States may
levy, on imports and exports. 8.55,
942. Limits of, 944. Examples of,

ib.

Insurance, contracts for, not commerce,
543. Federal power as to, 582.
State insurance, 583.

Interpretation of statute, 365-6.

Right of independent, 755. Of
Constitution, matters involving,
790 ; duty of, 791 ; principles of,
792 ; American cases on, 796.
Imperial Interpretation Act, 792
(and see Table of Statutes, 52 and
53 Vic. c. 63).

Inter State Commission, debates as
to, 171, 183, 201. There shall be,
521, 895. Suggested by English
Railway Commissions, 896 : and bj'
American Inter -state Commerce
Commission. 521, 897, 910. Its
general powers of adjudication,
899 ; and administration, 900 ; not
a legislative body, ib. Its special
powers as to State railways, 899,
918. Tenure, appointment, and
remuneration of members, 918. See
Preference.

Intoxicating liquids See Liquor.

Irrigation, right of States to reasonable
use of waters for, 880. 894. Pro-
bable effect of, on na^igation, 894.
t^ee Waters.

Joint sitting, suggested at Adelaide
session, 167, 180. Adopted at
Sydney session, 190 ; and Mel-
bourne session, 203. See Disagrte-
ment.

Judges, Parliament may prescribe num-
ber of, to exercise federal jurisdiction,
S07. See Justices.

Judgments, 741. Distinguished from
decisions, 755.

Judicial Committee. See Qute^i in

Council.

1002

INDEX.

Judicial power, 655, 719, 806. Separa-
tion of, 719. Executive encroach-
ments on, 720. Legislative encroach-
ments on, 721. Does not include
political questions, 722. Legislation
incidental to, 655, 723. Vested in
federal courts. 723. Whether it in-
cludes extra-judicial opinions, 765.
Matters within the limits of, federal
power to confer rights to sue
Commonwealth or States, 804. In
territories, 973.

JudieiaPy, Federal, resolutions as to,
in 1891 Convention, 129, 133; at
Adelaide session, 169. Is a co-
ordinate department, 723.

Jupisdietion, 736. Mode of proof of
facts conferring, is matter of pro-
cedure, 772, Federal, not presumed,
784. Common law, 785. Of inferior
federal courts, power of Parliament
to define and make exclusive, 802.
Federal, Parliament may invest
State courts with, 803 ; and prescribe
number of judges to exercise, 807.
Concurrent, 80.3.

Jupy, in civil cases, 727. Trial by, on
indictment, 808, 810.

Justices of federal courts, 727. Their
nvmiber and precedence. 727. Ap-
pointment of, 727, 729. Tenure and
removal, 730 Responsibility of
Ministers for removal, 732. Power
to suspend, 733. Reasons for
security of tenure, ib. Remunera-
tion of, 734.

Of High Court, appeals from to
High Court in appellate jurisdiction,
742.
Labouehere, Henry, 93. Reply to
Wentworth's memorial, 94.

Labour Party, criticism of 1891 Bill by,
144, 145. At Convention elections,
163. Objections to Convention Bill,
206.

Lang, Dr. John Dunmore, 91, 92, 99.

Law, questions of, 743, 914. Constitu-
tionality of, see Uncon'ititutionaL

Laws of the Commonwealth, 346, .357,
809. Are binding on courts, &c.,
353-6. Disallowance of, 692. Cases
arising under, 797. Offences against,
809.

Of the States, 356. Saving of, 937.
Inconsistency of, with federal law,
938.

Legal Tender, federal power as to, 575.
In United States, ib. Imperial con-
trol of, ih. States may not make
anything but gold and silver coin,
950.

Legislative power of the Common-
wealth, 384-5, 508, 653 ; classified,
509 ; plenary nature of, ib. ; limita-
tions of, 510 ; nature and distribution

of, 511. Distinguished from judicial,
721. Declaratory and retrospective
legislation, ib.

License, for sale of liquor, 527. For
business, 532. Imposition or appro-
priation of fees for, 668.

Lighthouses and lightships, 85, 91, 94.
Federal power as to, 565. Transfer
of departments of, 714. State power
as to, 853.

Limits, territorial (see Territorial limits).
Of constitutional powers, appeals in
questions as to, 756. Of States,
alteration of, 973.

Liquor, importation and sale of, 537,
548, 944. Prohibition of sale of,
544-7,947. Wilson Act (U.S.), 538,
946.

Lord Howe Island, 376.

Lords spiritual, 303-4 ; Temporal, 304-5.

Mandamus, 780. Against officer of the
Commonwealth, 778, 781. American
cases, 778. General jurisdiction in,

780.

Manufacture is not commerce, 518.

Marginal Notes of statute, 281.

Maritime jvuisdiction. See Admiralty.

Marriage, federal power as to, 608.

Matrimonial causes, federal power as
to, 611.

Matters referred by State Parliaments,
legislative power in respect of, 648.
Incidental to execution of power,
651. In which High Court has
original jurisdiction, 765 ; or may
be invested with additional jurisdic-
tion, 789.

Melbourne, foundation of, 52. Federal
Parliament to meet at, till it meets
at the seat of Government, 978.

Members of one House ineligible for the
other, 488. Of Parliament, dis-
qualifications of, 489 ; allowance to,
499 ; privileges of, 500, 507.

Meteorological observations, federal
power as to, 566.

Ministers of State for the Common-
wealth, 709. Appointment of, to
administer departments, 708. To
sit in Parliament, 128, 711. Not
disqiialified, 493. Must be members
of Federal Executive Council, 705.
Without portfolios, 705, 711.
Number and salaries of, 712.
For a State, not disqualified, 493.

Misbehaviour, judicial, 731.

Money bills, "compromise of 1891,"
128, 129, 131, 138. Discussed at
Adelaide session, 166, 169, 172.
Suggestions of Parliaments, 182, 186.
Sydney session, 1 89.

INDEX.

1003

Origination of, 667. Amendment
of 6&, 671. Suggestion of amend-
ments, 671.

Monopolies, federal regulation of, 538.

Murray River, customs treaties, 100,
lOl. Railway across, 109.

Nation denned, 371. National and
federal, 334-42.

Naturalization, federal power as to,
601 ; in the United f^tates, ib.
Canadian cases as to, 602. Under
colonial laws, 603. See Aliens.

Navigation and shipping, included in
commerce, 517, 540, 542, 873-4. See
Waters.

New Guinea, attempted annexation of,
by Queensland, 110, 113. Descrip-
tion of, 376.

New South Wales, Foundation of, 29.
First statutor}' authority, .35. Con-
stitutions of 1823 and 1828, 36.
First representative legislature, 38.
Australian Colonies Government Act,
1850, 40. Demand for responsible
government, 41. Constitution Sta-
tute and Act, 42. Responsible
government, 44. Amendment of the
Constitution, 47. Enlarged legisla-
tive powers, 48. Original extent of,
79. Description and administration
of, 373. Seat of Government to be
in, 978. See Table of Cmitents.

New States, admission or establishment
of, 966. Modes of creating, 967 ;
terms and conditions, 969. Forma-
tion of, by separation or union, 975.

New Zealand, discovered, 26. Circum-
navigated, 27. First settlement of,
75. Queen's sovereigntj' proclaimed,
ih. Separation from N. S. W. , 75, 79.
The new Constitution, 76 Respon-
sible government, 77. Provinces
abolished, 78. Reforms, ih.

Federal resolutions of 1890, 123.
Attitude towards Federation, 228.
Suggests amendments in the Con-
stitution of the Commonwealth,
2.33, 234, 237. Description of, 373.
Propose<l island Federation, 251, 639.

Norfolk Island, 376.

Oath of allegiance, 488.

Offence defined, 492. Conviction for,
disqualifies for Parliament, 490, 492.
Common law, jurisdiction over, 785,
809. Against law of the Common-
wealth, 809. Breach of statutory
prohibition is, 809.

Office of profit, 490, 492.

Officers of army or navy, not disquali-
fied, 494. Federal, incidental legis-
lative power as to, 655 ; appointment
and removal of, 712 ; mandamus,
prohibition, or injunction against,
778. Of the Commonwealth, who
are, 783. Of the transfen-ed depart-
ments, 817.

Orders. See Riih» and Orders.
Original Package, doctrine of, 524,

527, 536, 537, 846.

Pacifle islands, federal power as to rela-
tions of Commonwealth with, 637.
British control in, ih. British pos-
sessions in, 6.39. Projects of New
Zealand as to, j6.

Paper money, federal power as to, 579.

Parental rights, federal power as to,
611.

Parkes, Sir Henry, advocates Federa-
tion, 10.3. Federal Council Bill of
1867, 104. Proposed tariff agree-
ment in 1880, 107. Federal (-'ouncil
resolutions, ih. ; Bill, 108. Changes
his views as to Federal Council, 113.
Suggests Federal Parliament and
Executive, 117. Suggests National
Convention, 118. Consents to pre-
liminary conference, 119. Resolu-
tions in Conference. 120; in N.S. W.
Parliament, 12.3. President of 1891
Convention, 124. Resolutions in
Convention, 124-6. Eulogy of 1891
Bill, 141. Proposed resolutions in
N.S.W. Parliament, 144.

Parliament, Federal, debates in 1891
Convention as to, 128, 133 ; at
Adelaide session, 168, 173. Deriva-
tion and prototj'pes of, 383. Queen
is part of. 385. Sessions of, 404,
406. Prorogation of, 404, 407. Sum-
moning of first, 409. Return of
writs, 410. Yearly session, ib. See
Elections, Members, Legislative
power.

Parliament, Imperial, the Common-
wealth Bill before, 242-9. Powers
exercisable by, federal power as to,
650.

Parliaments, State, 928. Continuance
of powers of, unless exclusively
vested in Federal Parliament or
withdrawn, 933. Concurrent powers
of, 934. Restricted powers of, 936.
New legislative powers of, ih.
Powers of alteration and repeal,
937. May surrender territory, 941.

Parties, federal jurisdiction depending
on, 7.37, 772, 773, 775.

Passengers, State registration of, 526 ;
State tax on, 528, 555 ; federal tax
on foreign, valid, 542.

Passing of Commonwealth Constitution
Act, 331.

Patents of inventions, federal power as
to, 596. English, American, and
Canadian cases, 597.

Payment to members of Parliament,
499. To States, of three-fourths of
net customs and excise, see Braddon
clatise. Of surplus revenue, see
Bevenue.

1004

INDEX.

Peace, order, and good government,
511. Effect of the words, 512, 658.

Penalty for sitting when disqualified,
495. Imposition or appropriation of,
667.

Pensions, from Crown, disqualify for
Parliament, 493 ; exceptions, 494.
Invalid and old-age, federal power as
to, 204, 612.

People of the Colonies, their agreement
to federate, 290-2 ;. union of, 332,
366. Of Commonwealth and States,
418, 447, 449, 957 ; privileges and
immunities of, 958.

Person, includes corporation, 777, 793.

Pilots, validity of State laws as to, 529,
541, 853.

Plantations, use of the term, 1. Com-
mittee on Trade and, 83.

Police powers of States, 525, 526.
Defined, 5.33. Restriction of inter-
state commerce by, 847, 850-3. Limits
of, 853.

Ports, State powers as to, 853. Prefer-
ence to, 875.

Posts, telegraphs, and telephones, federal
power as to, 559. Transfer of depart-
ments of, 714.

Powers of the Houses, 501, 507, 654; in
respect of laws, 662, 673 ; to address
Crown for removal of Judges, 731 ;
to allow State bounties, 843. Federal
and State, overlapping, 583. Of
federal officers and departments, 655.
Constitutional, questions as to the
limits of, 757. See Executive, Judicial,
Ler/idatire, Exchmive, Concurrent,
Incidental, and Implied powers.

Preamble, 284-5. Of the Common-
wealth Act, 204, 230, 238, 240-9,
282-34. Recognition of God in, 287,
952.

Preference, 551, 877, 912-5. What

constitutes, is a question of law, 743,
745, 914. By Commonwealth, for-
bidden, 875, 905.

Undue or unreasonable, 905-15 ;
Parliament may forbid States to
give, 901, 904. English legislation
and cases, 905 ; American, 910.
Croup rates, 908 ; competitive, 908,
912, 914, 916 ; long and short haul,
911, 916. Due regard must be had
to financial responsibilities of States,
917. Inter-State Commission is
judge of unreasonableness, 744-6,
915, 918. See Discrimination.

Prerogative. 322-3, 406, 707. Of grant-
ing or refusing dissolution, 407, 464.
Of Queen in Council to grant special
leave to appeal, 750 ; not impaired
without express words, 760 ; power
of colonial legislatures to limit, 761 ;
Parliament may make laws limiting,
ib. In territories, 973.

President of Senate, election of, 440 ;
absence of, 441 ; vote of, 444.

Privileges of the Parliament. 501, 507.
Of colonial legislatures, 503. Privi-
leges and immunities of people of
Commonwealth and States, 958 ;
enforcement of, 959.

Privy Council, Committee of, on Trade
and Plantations, 83. History of,
329-30. Judicial Committee of, 751.
See Queen in Council.

Process, service and execution of, 614-7'
Recognition of, 620.

Proclamation of Commonwealth, 250,
331-2, 344. Of date of transfer of
departments, 714.

Production distinguished from com-
merce, 518. Bounties on, see
Bounties.

Prohibition, State laws as to, 537.
Whether included in "regulation,"
547. Writ of, 780, 782 ; against an
officer of the Commonwealth, 783.
Statutory, breach of, is an offence,
809.

Promissory notes. See Bills oj Ex-
change.

Property, acquisition of. for public
purposes, 204. Used in connection
with transferred departments, 820.

Proposed laws, meaning of, 663, 674-
Royal assent to, 688. Reserved,
signification of Queen's pleasure on,
693.

Punctuation of statute, 282.

Qualification, of electors of senators,
423. Of senators, 439. Of electors of
House of Representatives, 467 (see
Franchise, Electors). Of members of
the House of Representatives, 474.
Trial of question of, 495.

Quarantine, 112. Federal power as to,
566. In United States, 567. Cana-
dian cases, 567. Transfer of depart-
ments of, 714. State power as to,
854, 857.

Queen, The, legislative authority of,
301-3. References to, 321-4. In the
Federal Parliament, 385. Bills pre-
sented to Governor-General for her
assent, 692. Signification of her
pleasure on bills reserved, 693.
ICxecutive power vested in, 701.
See Croimi.

Queen in Council, no appeal as of right

to, from High Court, 746, 750. Pre-
rogative right to grant special leave
of appeal, 746, 748, 750, 761. When
special leave will be granted, 752.
Parliament may limit matters in
which leave may be asked, 761 ; but
laws limiting must be reserved, 763.
Limitation of prerogative as regards
constitutional questions, 753, 755,

INDEX,

1005

758-9. No appeal upon constitutional
questions unless the High Court
certifies, 759.

Queensland. Moreton Bay settlement,
72. Separation of, 72, 99. Constitu-
tion of, 73. Relations of the two
Houses in, 74. Reforms, 74.

Reply of to federal proposals in
1860, 99. Annexation of New Guinea
by, 110. Executive Government of,
passes federal resolutions in 1883, ib.
Joins Federal Council. 114, 377.
Federal resolutions in 1890, 123.

A Fails to join Convention of 1897-8,

162, 187, 193. Secures amendment
as to Senate electorates. 220. Adopts
Constitution 223. Description of,
374. Senate electorates in, 421.

Question, constitutional, 754. Of fact
or law, see Fact, Law.

Quorum of Senate, 443. Of House of
Representatives, 482.

Quota for House of Representatives,
445, 454.

Race, people of disfranchised, special
laws as to, 622.

Railway rates, debates at 1891 Con-
vention, 137 ; at Adelaide session,
171, 178; at Melbourne session, 199;
criticism of clauses, 207, 211.

Principles of making, 913. Prohibi-
tive, are unlawful, 916. Competitive,
ib. Long and short haul, ib. Develop-
mental, 920. See Preference.

Railways of the States, federal control
of, 169, 176, 199; for naval and
military purposes, 642. Financial
responsibilities in connection with,
202, 917. Are instriiments of com-
merce, 517, 541. Federal power to
acquire, 643. State control of, 856.
Commerce power extends to, 874.
Powers of Inter-state Commission
with respect to, 899, 905. See
Inter-state Commission.

Of the Commonwealth, power to
construct and extend, 645. Prefer-
ences upon, 905.

Reasonable, what is, usually a question
of fact, 744, 914-5. Use of waters
of rivers, 890 ; analogy with common
law, 892 ; with preference clauses,
ib. See Prejerence.

Recognition of State Acts, &c., federal
power as to, 620. See Faith and
Credit.

Reference by states, legislative power
in respect of 648.

Referendum on the Commonwealth
Bill of 1898, 206-13 ; of 1899, 221-6,
249. Suggested, in case of dead-
locks 167, 180, 183, 190-1, 203. On
amendments of the Constitution,
987, 992.

Regulations for appellate jurisdiction
of High Court, 738. Of trade, com-
merce, and revenue, 876, 881.

Reid, Mr. G. H., criticizes the Bill of
1891, 122, 145. Takes up Enabling
process, 159 Attitude at Refer-
endum of 1898, 208. Negotiates
for amendments, 214-8. Obtains
Conference of Premiers, 218. Sup-
ports Amended Bill, 221.

Religion, laws as to, 205, 288-90;
Commonwealth may not make laws
for establishing, 950. Christian, is
the law of the land, 288, 951.

Representatives of other countries,
cases affecting, 772. Of federal
territories, 972. See House of
Representatives.

Reserved, bill may be, by Governor-
General, 68^. Signification of
Queen's pleasure on bills, 693. Bills
limiting prerogative of appeal must
be, 763. List of bills reserved iu
colonies, 694.

Residence of members of Parliament,
477. Of corporation, 777. Change
of, 777.

Resident, of Commonwealth, 477. Of
a State, 775, 959 ; discrimination
against, by another State, 960.

Responsible Government, demand for
in N.S.W., 41; grant of, 44; in
Victoria, 55 ; in Tasmania, 61 ; in
South Australia, 65 ; in Western
Australia, 69, 70 ; in Queensland,
73 ; in New Zealand, 77.

Debates in 1891 Convention, 128,
132, 136, 139; at Adelaide session,
166. 169. Application of Referendum
to, 203.

In the Commonwealth, 703, 709.
In a Federation, 706. See Cabinet.

Revenue, apportionment of surplus,
debates at 1891 Convention, 133-4,
137, 139 ; at Adelaide session, 169,
183 ; at Sydney session, 188 ; at
Melbourne session, 197.

Appropriationof, 812. Net, 826(see
Braddon clause). Surplus, payment
to States before uniform duties, 375 ;
for five years afterwai-ds, 861 ; after
five years, 863 ; to be made monthly,
865. Collected in territories, 833.

Riparian rights, 888. Between States,
whether there are, 175, 198, 888.
Common law as to, 892. See Rivers.

Rivers, debates in 1891 Convention, 1.38 ;
at Adelaide session, 168, 174 ; diffi-
culties of problem, 174; at Mel-
bourne session, 194.

Within a State, 540, 886; con-
necting with waters of other States,
882, 886 ; along boundary, 888.
Improvement and obstruction of
navigation of, 540. 883. Bridges and
dams across, State powers to con-

1006

INDEX

struct, 540, 858, 885. Reasonable
use of waters of, 879. Riparian
rights ])efore Federation, 887 ; after
Federation, 890. See Waters.

Roads witliin State, State power as to,
542.

Rules and orders powers of Houses as
to, 407. Of Colonial Legislatures,
503.

Russell, Lord John, his administration,
81. His reply to Wentworth's
Committee, 92.

Seat of Government, debates at 1891

Convention, 135, 141 ; at Melbourne
session, 204. Demands of N.S.W.,
216, 218; amendment at Premiers'
Conference, 219. Historical note,
978.

Exclusive power to make laws for,
658, 982. Representation of, 973.
Temporary, question of, 979. Ac-
quisition of site for, 980 ; Mr.
Oliver's Report, 982. Measurement
of distance, 982. Shall be vested in
the Commonwealth, ib. Crown lands
to be granted free, 982.

Secession, American doctrine of, 292-4.

Senate, 412-44. Adoption of word, 131,
168, 173. Equal representation in,
131, 173, 182, 183, 189, 206, 412, 414,
421. Powers of, 129, 131, 138, 14-5,
662-73 ; debates at Adelaide session
as to, 166, 173; at Sydney session,
189 ; see Money bills, Appropriation
bills. Taxation bills. Function as
Council of States, 414.

Dissolution of, 167, 180, 191, 203,
430. Electorates for, 413, 419.
Quorum of, 443. Voting in, 444.
See Senators.

Senators, mode of election of, 137, 413,
418. Number of, 218. Term of
office, 413, 422, 4.33. Certifying
names of, 413, 422, 4.35, 438.
Qualifications of, 439. Qualifications
of electors of, 4.23-4. Method of
choosing, 425. Times and places of
elections, 427 ; application of State
laws, ib. Failure to choose, 428.
Issue of writs, 429. Rotation of,
4.30, 434. Casual vacancies, 434.
Vacancy by absence, 442. Vacancy
to be notified, 443. See Senate.

Separation, beginnings of in Australia,
79. Of territory, formation of new
State by, 976.

Service, Mr. James, 110, HI, 119.

Service of process of State courts,
federal power as to, 614.

Services, imposition or appropriation
of fees for, 668. State charges for,
are not taxes on commerce, 853.

State, contrasted with Government, 367.
Diiierent meanings of word, 368-72.

States, adoption of word, 131. Are
parts of the Commonwealth, .370-1.
Original, 376-421. New, 967-77.
Boundaries of, 216, 219 ; suits as
to, 775. Alteration of limits of, 216,
219, 378, 974. Division or amalga-
mation of, 129, 976.

Suits against, 774, 806. Suits be-
tween, 775. Suits between residents
of different, 776. Suits between a
State and resident of another, 778.
Laws conferring rights to proceed
against, 775, 805.

Continuance of the Constitutions
of, 929 ; subject to the Federal Con-
stitution, 931. Powers of the Par-
liaments of, continued, 933 ; resi-
duary, 935 ; new, 936 ; to surrender
territory, 941. Laws of, continued,
937 ; unless inconsistent with federal
laws, 938.

May levy charges for inspection
laws, 942. Maj' control liquor traffic,
944. May not, without consent of
Commonwealth, raise forces or tax
property of Commonwealth, 948.
May not coin money, 950. Rights of
residents in, 953. People of, 418,
957. Recognition of laws, &c., of,
620, 961. See New States.

Statistics, federal power as to, 572.
' ' The latest statistics of the Common-
wealth," 445, 454, ,922, 925.

Subject, British, natural born and
naturalized, 478 ; defined, 491, 955 ;
resident in one State, discrimination
against by another, 954. Of foreign
power, disqualified for Parliament,
491.

Subject-matter, federal jurisdiction
arising from, 737, 773, 800, 764-804.
The same, claimed under laws of
different States, 800.

Suffrage, see Franchise, Wome7i.

Surplus revenue, distribution of. See
Bevenne.

Sydney, foundation of, 30, 79. Proposed
as the federal capital, 141, 184, 204,
218, 219. Seat of Government must
not be within 100 miles of, 219, 978.

Tackingr< to annual appropriation bill
forbidden, 674. To taxation bills,
675.

Tariffs, intercolonial, first imposition
of, 79, 100. Border customs treaties,
101. Uniform tariff proposals, ib.
Conference of 1863, ib. Other Confer-
ences, 102-7. Propo.sals for customs
union, 104. See Customs and excise.
Customs duties.

Tasmania, Discovery of, 25. Explora-
tion, 31. Foundation, 58, 79. Sepa-
ration from N.S.W., 59, 79. First
representative legislature, 60. New
Constitution, 61. Responsible govern-
ment and enlarged legislative powers.

INDEX.

1007

ib. Change of name, 61. Reforms,
62. Reciprocity with N.S.W., 79.
Early tariffs, iOO. Joins Federal
Council, 144. 377. Federal resolu-
tions of 1890, 123. Consideration of
1891 Bill, 147. Suggests amend-
ments of Adelaide Bill, 18.5. Refer-
endum of 1898, 212 ; of 1899, 223.
Description of, 374.
Taxation, federal powers of, 132, 549.
Nature of power, 550. Limits of power,
ih. Preferences and discriminations,
550-1, 829, 876-9. Of State property
and officers, 651, 553. Area and
extent of power, 551. How far
exclusive, ib. Of property of State
or Commonwealth, 948. Of federal
corporations by States, 552. Ex-
amples of power, 555. Apportion-
ment of, 556 ; effect of violation,
678.

Laws imposing, 675 ; shall deal
only with imposition, 677 ; only with
one .subject of taxation, 678. Bills
for imposing, Senate may not origi-
nate, 677 ; nor amend, 678 ; what
bills are deemed not to be, 667.

Telegraphs and telephones are instru-
ments of commerce, 517, 534, 541.
See Posits.

Territorial limits, 354 ; Australian
waters bej'ond, 569 ; corporations
formed within, 607. Territorial
waters, 356. Territorial basis of
Commonwealth, 366, 372.

TePPitories, Australasian, 376. Federal,
laws for the government of, 970-1 ;
prerogative in, 972 ; judicial
authority in, ib.; representation of,
ih. See Territory, Heat oj Oovtm-
nient.

TePPitOPy, States may surrender, 941,
970. Placed by Queen under control
of Commonwealth, or otherwise
acquired, 970-1. See Seat of Govern-
ment.

Title of Statute, 281. Short title of Com-
monwealth Act, 311-20.

Tonnagre duty, 536, 850, 948.

ToPtS in connection with commerce,
States may deal with liability for,
542.

TPade and commerce, debates in 1891
Convention, 135. Definition of,
515-17. Includes transportation, 517,
533, 535 ; travel, 518 ; traffic and
intercourse, 522, 539 ; navigation
and shipping, 520, 522, 540, 873 ;
improvement of navigation and re-
moval of obstructions, 540, 874 ;
State railways, 520, 874. Does not
include production and manufacture,
518 ; or certain occupations, 519.
Subjects of, 518.

Inter-state, federal power as to,
515-49. Definition of, 517, 903-4.
Extent of the power, 539. Aids to
power, 516. Limits of power, 516,
903. Exclusive or concurrent, 5.30.
Beginning and end of federal con-
trol, 519, 539 ; duration, 519 ; inter-
ruption of transit, 519. Leading
American cases, 521-39. American
and Canadian powers, .543.

Equality of, 171, 199, 903 (see
Preference).. Freedom of, 845. Re-
gulation of, 516, 522, 547 ; and pro-
hibition, 547. State legislation
affecting, 542. State tax upon, 5M,
846 ; when constitutional, 848 ; upon
persons engaged in, 857. State
licenses for, 847 ; other allowable
charges, 849. Restriction by police
powers of States, 847, 850-3. Do-
mestic commerce of States, 517, 540,
542, 855, 856, 903-4.

TPade Mapks, federal power as to, 598.
Rights of aliens as to, 600.

Tpading corporations. See Corpora-
tions.

TpansfeP. See Departments, Officers.

Tpeason, attainder or conviction for,
disqualifies for Parliament, 490, 492.

TPeaties, 346, 631, 678. Commercial,
633, 769 ; negotiation of, by colonies,
635. Matters arising under, High
Court has original jurisdiction in,

768, 770. Municipal rights under,

769. In United States, have the
effect of laws, 769. Judicial cogni-
zance of, 770.

TPipaPtite division of government.
See Government,

Unconstitutional, when courts will
pronounce a law, 767, 792, 796.
Statutes unconstitutional in part, 796.

Undue and unreasonable, what is, is a
question of fact, 744. Test of a pre-
ference, whether it is undue, &c.,
878. See Preference.

Unification, Sir George Dibbs' scheme
for, 155. Distinguished from
Federation, 333.

UnifOPm federal franchise, 483-7, 985.
Method of choosing senators, 426.
Taxation must be, 550, 829, 876.
Bounties must be, 556. Duties of
customs, 829.

United Kingdom, The, 296 300. Out-
lines and conspectus of Constitution
of, 317, 319.

United States of America, outlines and
conspectus of Constitution of, 318,
320. Leading commerce cases, 521-
39. Commerce power in, 542.

"Until the Papliament otherwise
pPOVides," legislative power con-
ferred by these words, 647.

1008

INDEX.

Vacancies in Senate, triennial, 430,
434 ; casual, 434 ; by resignation or
absence, 442 ; notification of, 437,
443. In House of Representatives,
473 ; by resignation or absence, 481.
In both Houses, on disqualification,
494. Trial of disputed, 496.

Validity of law. See Unconstitutional.

Van Diemen'S Land. See Tasmania.

Vice- Admiralty courts in N.S.W. and
Victoria, 797-8. See Admiralty.

Victoria, Foundation of Port Phillip
settlement, 51, 79. Separation from
N.S.W., 52, 81, 100. Political
progress, 54. Constitution Statute
and Act, 55. Responsible Govern-
ment, 57. Enlarged legislative
powers, ib. Reforms, ib. Consti-
tutional struggles, ib.

Constitutional Committee of 1853,
91. !*elect Committees on Federa-
tion, 95, 97. First tariff, 100. Joins
Federal Council, 114, 377. Federal
resolutions of 1890, 122. Resolu-
tions on 1891 Bill, 146. Referendum
of 1898, 210. Suggested amend-
ments of Adelaide Bill, 184. Des-
cription of, 374.

Wakefield, Edward Gibbon, 62.

Waters, territorial, 356. Beyond terri-
torial limits, 569. Navigable, 881 ;
American decisions as to, 882, 887 ;
extent of federal authority over,
883 ; concurrent powers of States
as to. 884. Of rivers, 893 ; Common-
wealth may not abridge reasonable

use of, 879 ; for conservation or
irrigation, 893. See Rivers.

Weights and measures, federal power
as to, 584.

WentWOrth, William Charles, protests
against Earl Grey's despatch, 82
Secures appointment of Constitu-
tional Committee, 90. His federal
scheme, ih. His Memorial and
Enabling Bill, 93, 96.

Western Australia, Foundation of, 33.
First statutory authority, 67. First
representative legislature, 68. Re-
sponsible Government sought, 69.
New Constitution and Responsible
Government, 70. Reforms, 71.
Joins Federal Council, 114, 377.
Federal resolutions of 1891, 123.

Suggested amendments of Adelaide
Bill, 185. Tariff clause, 198. Com-
monwealth Bill referred to Select
Committee, 226. Suggested amend-
ments, 226, 234, 237. Adopts Con-
stitution, 249. Description of, 375.
Retains intercolonial customs for
five years, 865.

Wharfage dues, not a tax, 535, 536,
853. Must be reasonable, 854.

Wharves, State powers as to, 853.

Wilson Act (United States). See

Liquor.
Women, qualification of, as members

of the Federal Parliament, 475.

Extension of suffrage to, in New

Zealand, South Australia, and

Western Australia, 483-7.

Webadale, Shoosmith &Co., Printers, Sydney.

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